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REPORT
OF THE
CASE OF EDWARD PRIGG
AGAINST
THE COMMONWEALTH OE PENNSYLVANIA.
ARGUED AND ADJUDGED
IN
ffilje Supreme (tfottvt of tl)e Untteir Statea,
AT
JANUARY TERM, 1843.
IN WHICH IT WAS DECIDED
THAT ALL THE LAWS OF THE SEVERAL STATES RELATIVE TO
FUGITIVE SLAVES ARE UNCONSTITUTIONAL AND VOID ;
AND
THAT CONGRESS HAVE THE EXCLUSIVE POWER OF LEGISLATION ON THE
SUBJECT OF FUGITIVE SLAVES ESCAPING INTO OTHER STATES.
BY RICHARD PETERS,
REPORTER OF THE DECISIONS OF THE SUPREME COURT OF
THE UNITED STATES.
STEREOTYPED BY L. JOHNSON.
1S42.
Entered according to the Act of Congress; in the year 1S42, by
Richard Peters,
in the Clerk's Office of the District Court of the United States, of the Eastern District
of Pennsylvania.
PREFACE.
The general and deep interest of all the citizens of the United
States in the case now published, has induced the Reporter to
present it to the public in its present form, before the regular
reports of the cases decided at the late term of the Supreme Court
of the United States can be completed.
The principles of constitutional law, which have been applied
in this case to the legislation of the several states relative to fugi-
tive slaves, have established the invalidity of all state laws on
this subject. Hereafter, under the Constitution of the United
States, Congress will have, exclusively, the protection and main-
tenance of the rights of the master over his absconded slave, and
can alone supply the means of executing the Constitution of the
United States for the arrest of such fugitives, and for their being
carried back to the state from which they may have escaped.
No state judicial officer, under the authority of state laws, can
act in the matter ; no such officer is bound to act ; and Congress
have no right to call upon such officers to carry into effect the
laws enacted by the government of the United States.
In delivering the opinion of the Court, Mr. Justice Story says :
" Few questions which have ever come before this Court involve
more delicate and important considerations ; and few upon which
the public at large may be presumed to feel a more profound and
pervading interest."
Among the principles settled in this case, is one which has a
general national importance ; and which it is understood is now
in discussion between the government of the United States and
that of Great Britain.
3
April, 1842.
Edward Prigg, Plaintiff in Error, v. The Commonwealth
of Pennsylvania, Defendant in Error.
A writ of error to the Supreme Court of Pennsylvania, brought under the twenty-
fifth section of the judiciary act of 1789, to revise the judgment of that Court,
on a case involving the construction of the Constitution and laws of the United States.
Edward Prigg, a citizen of the state of Maryland, was indicted, for kidnapping, in the
Court of Oyer and Terminer of York county, Pennsylvania, for having forcibly
taken and carried away, from that county, to the state of Maryland, a negro woman,
named Margaret Morgan, with the design and intention of her being held, sold, and
disposed of as a slave for life, contrary to a statute of Pennsylvania, passed on the
twenty-sixth day of March, 1826. Edward Prigg pleaded not guilty, and the jury
found a special verdict, on which judgment was rendered for the Commonwealth of
Pennsylvania. The case was removed to the Supreme Court of the state, and
the judgment of the Court of Oyer and Terminer was, pro forma, affirmed : and
the case was carried to the Supreme Court of the United States; the constitutionality
of the law, under which the indictment was found, being denied by the counsel of
the state of Maryland ; which state had undertaken the defence for Edward Prigg,
and prosecuted the writ of error. The cause was brought to the Supreme Court, with
the sanction of both the states of Maryland and Pennsylvania, with a view to have
the questions in the case settled. Margaret Morgan was the slave for life, under the
laws of Maryland, of Margaret Ashmore, a citizen of that state. In 1832 she
escaped and fled from the state, into Pennsylvania. Edward Prigg, having been
duly appointed the agent and attorney of Margaret Ashmore, and having obtained a
warrant from a justice of the peace of York county, caused Margaret Morgan to be
taken, as a fugitive from labour, by a constable of the state of Pennsylvania, before
the magistrate, who refused to take cognisance of the case : and thereupon Edward
Prigg carried her and her children into Maryland, and delivered them to Margaret
Ashmore. The children were born in Pennsylvania ; one of them, more than a year
after Margaret Morgan had fled and escaped from Maryland.
By the first section of the act of Assembly of Pennsylvania of 25th March, 1826, it is
provided, that if any person shall by force and violence take and carry away, or shall
by fraud or false pretence attempt to take, carry away, or seduce any negro or mu-
latto from any part of the commonwealth, with a design or intention of selling and
disposing of, or keeping or detaining such negro or mulatto as a slave or servant for
life, or for any other term whatsoever, such person, and all persons aiding and abetting
him, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit
and pay a sum not less than five hundred nor more than three thousand dollars,
and shall be sentenced to undergo a servitude for any term or terms of years,
not less than seven years, nor exceeding twenty-one years; and shall be con-
fined and kept at hard labour, &c. Other provisions are contained in the act;
and it was passed in 1826, as declared in its title, to aid in carrying into effect the
Constitution and laws of the United States, relating to fugitives from labour ; and
on the application to the legislature, by commissioners from the state of Maryland,
A 2 5
6
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
with a view to meet the supposed wishes of the state of Maryland on the subject of
fugitive slaves; but it had failed to produce the good effects intended.
By the Court :
It will, probably, be found, when we look to the character of the Constitution of the
United States itself, the objects which it seeks to attain, the powers which it confers,
the duties which it enjoins, and the rights which it secures ; as well as to the known
historical fact that many of its provisions were matters of compromise of opposing
interests and opinions ; that no uniform rule of interpretation can be applied, which
may not allow, even if it does not positively demand, many modifications in its actual
application to particular clauses. Perhaps the safest rule of interpretation, after all, will
be found to be to look to the nature and objects of the particular powers, duties, and
rights, with all the light and aids of contemporary history ; and to give to the words
of each just such operation and force, consistent with their legitimate meaning, as
may fairly secure and attain the ends proposed.
It is historically well known, that the object of the clause in the Constitution of the
United States, relating to persons owing service and labour in one state escaping
into other states, was to secure to the citizens of the slaveholding states the com-
plete right and title of ownership in their slaves, as property, in every state in the
Union, into which they might escape from the state where they were held in servi-
tude. The full recognition of this right and title, was indispensable to the security
of this species of property in all the slaveholding states ; and indeed was so vital to
the preservation of their domestic interests and institutions, that it cannot be doubted
that it constituted a fundamental article, without the adoption of which the Union
could not have been formed. Its true design was to guard against the doctrines and
principles prevailing in the non-slavcholding states, by preventing them from inter-
meddling with or obstructing or abolishing the rights of the owners of slaves.
By the general law of nations, no nation is bound to recognise the state of slavery as
to foreign slaves within its territorial dominions, when it is opposed to its own policy
and institutions, in favour of the subjects of other nations where slavery is recognised. If
it does it, it is as a matter of comity, and not as a matter of international right. The
state of slavery is deemed to be a mere municipal regulation ; founded upon, and
limited to the range of the territorial laws.
The clause in the Constitution of the United States,, relating to fugitives from labour,
manifestly contemplates the existence of a positive, unqualified right, on the part of
the owner of the slave, which no state law or regulation can in any way qualify,
regulate, control, or restrain. Any state law or regulation, which interrupts, limits,
delays, or postpones the rights of the owner to the immediate command of his service
or labour, operates, pro tanto, a discharge of the slave therefrom. The question can
never be, how much he is discharged from , but whether he is discharged from any,
by the natural or necessary operation of the state laws, or state regulations. The
question is not one of quantity or degree, but of withholding or controlling the inci-
dents of a positive right.
The owner of a fugitive slave has the same right to seize and take him in a state to
which he has escaped or fled, that he had in the state from which he escaped : and
it is well known that this right to seizure or recapture is universally acknowledged
in all the slaveholding states. The Court have not the slightest hesitation in hold-
ing, that under and in virtue of the Constitution, the owner of the slave is clothed with
JANUARY TERM, 1842.
7
[Prigg v. The Commonwealth of Pennsylvania.]
the authority in every state of the Union, to seize and recapture his slave ; wherever
he can do it without any breach of the peace, or illegal violence. In this sense, and
to this extent, this clause in the Constitution may properly be said to execute itself,
and to require no aid from legislation, state or national.
The Constitution does not stop at a mere annunciation of the rights of the owner to
seize his absconding or fugitive slave, in the state to which he may have fled. If it
had done so, it would have left the owner of the slave, in many cases, utterly with-
out any adequate redress.
The Constitution declares that the fugitive slave shall be delivered up on claim of the
party to whom service or labour may be due. It is exceedingly difficult, if not im-
practicable, to read this language, and not to feel that it contemplated some further
remedial redress than that which might be administered at the hand of the owner
himself. "A claim" is to be made.
"A claim," in a just juridical sense, is a demand of some matter as of right, made by one
person upon another to do or to forbear to do some act or thing, as a matter of duty.
It cannot well be doubted, that the Constitution requires the delivery of the fugitive on
the claim of the master : and the natural inference certainly is, that the national
government is clothed with the appropriate authority and functions to enforce it.
The fundamental principle applicable to all cases of this sort would seem to be, that
where the end is required, the means are given ; and where the duty is enjoined, the
ability to perform it is contemplated to exist on the part of the functionaries to whom
it is intrusted.
The clause relating to fugitive slaves is found in the national Constitution, and not in
that of any state. It might well be deemed an unconstitutional exercise of the power
of interpretation, to insist that the states are bound to provide means to carry into
effect the duties of the national government; nowhere delegated or intrusted to them
by the Constitution. On the contrary, the natural, if not the necessary conclusion
is, that the national government, in the absence of all positive provisions to the con-
trary, is bound, through its own proper departments, legislative, executive, or judi-
ciary, as the case may require, to carry into effect all the right and duties imposed
upon it by the Constitution.
A claim to a fugitive slave is a controversy in a case " arising under the Constitution
of the United States," under the express delegation of judicial power given by that
instrument. Congress, then, may call that power into activity, for the very purpose
of giving effect to the right; and if so, then it may prescribe the mode and extent
to which it shall be applied ; and how and under what circumstances the proceedings
shall afford a complete protection and guaranty of the right.
The provisions of the sections of the act of Congress of 12th February, 1793, on the
subject of fugitive slaves, as well as relative to fugitives from justice, cover both
the subjects ; not because they exhaust the remedies, which may be applied by Con-
gress to enforce the rights, if the provisions shall be found, in practice, not to attain
the objects of the Constitution : but because they point out all the modes of attaining
those objects which Congress have as yet deemed expedient and proper. If this is
so, it would seem upon just principles of construction, that the legislation of Con-
gress, if constitutional, must supersede all state legislation upon the same subject ;
and by necessary implication prohibit it. For if Congress have a constitutional power
to regulate a particular subject, and they do actually regulate it in a given manner,
8 . SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
and in a certain form ; it cannot be that the state legislatures have a right to interfere.
This doctrine was fully recognised in the case of Houston v. Moore, 5 Wheat. Rep.
1, 21, 22. Where Congress have exclusive power over a subject, it is not competent
for state legislation to add to the provisions of Congress on that subject.
Congress have, on various occasions, exercised powers which were necessary and proper,
as means to carry into effect rights expressly given, and duties expressly enjoined by
the Constitution. The end being required, it has been deemed a just and necessary
implication, that the means to accomplish it are given also ; or, in other words, that
the power flows as a necessary means to accomplish the ends.
The constitutionality of the act of Congress relating to fugitives from labour, has been
affirmed by the adjudications of the state tribunals, and by those of the Courts of the
United States. If the question of the constitutionality of the law were one of doubt-
ful construction, such long acquiescence in it, such contemporaneous expositions of it ;
and such extensive and uniform recognitions, would, in the judgment of the Court,
entitle the question to be considered at rest. Congress, the executive, and the judiciary,
have, upon various occasions, acted upon this as a sound and reasonable doctrine.
Cited, Stuart v. Laird, 1 Cranch, 299 ; Martin v. Hunter, 1 Wheat. 304; Cohens v.
The Commonwealth of Virginia, 6 Wheat. 264.
The provisions of the act of 12th February, 1793, relative to fugitive slaves, is clearly
constitutional in all its leading provisions ; and, indeed, with the exception of that
part which confers authority on state magistrates, is free from reasonable doubt or
difficulty. As to the authority so conferred on state magistrates, while a difference
of opinion exists, and may exist on this point in different states, whether state magis-
trates are bound to act under it, none is entertained by the Court, that state magis-
trates, may, if they choose, exercise the authority, unless prohibited by state legisla-
tion.
The power of legislation in relation to fugitives from labour, is exclusive in the national
legislature. Cited, Sturgis v. Crowninshield, 4 Wheat. 122, 193.
The right to seize and retake fugitive slaves, and the duty to deliver them up, in what-
ever state of the Union they may be found, is under the Constitution recognised as an
absolute positive right and duty, pervading the whole Union with an equal and su-
preme force, uncontrolled and uncontrollable by state sovereignty, or state legislation.
The right and duty are coextensive and uniform in remedy and operation throughout
the whole Union. The owner has the same security, and the same remedial justice,
and the same exemption from state regulations and control, through however many
states he may pass with the fugitive slave in his possession, in transitu, to his domi-
cile.
The Court are by no means to be understood, in any manner whatever, to doubt or to
interfere with the police power belonging to the states, in virtue of their general sove-
reignty. That police power extends over all subjects within the territorial limits of the
states, and has never been conceded to the United States. It is wholly distinguish-
able from the right and duty secured by the provision of the Constitution relating to
fugitive slaves; which is exclusively derived from the Constitution, and obtains its
whole efficiency therefrom.
The Court entertain no doubt whatsoever, that the states, in virtue of their general police
power, possess full jurisdiction to arrest and restrain run-away slaves, and to remove
them from their borders, and otherwise to secure themselves against their depredations,
JANUARY TERM, 1842.
9
[Prigg v. The Commonwealth of Pennsylvania.]
and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers.
The rights of the owners of fugitive slaves, are in no just sense interfered with or
regulated by such a course ; and in many cases they may be promoted by the exercise
of the police power. Such regulations can never be permitted to interfere with or
obstruct the just rights of the owner to reclaim his slave derived from the Constitu-
tion of the United States, or with the remedies prescribed by Congress to aid and
enforce the same.
The act of the legislature of Pennsylvania upon which the indictment against Edward
Prigg is founded, is unconstitutional and void. It purports to punish as a public
offence against the state, the very act of seizing and removing a slave by his master,
which the Constitution of the United States was designed to justify and uphold.
IN error to the Supreme Court of Pennsylvania.
The defendant in error, Edward Prigg, with Nathan S. Bemis,
Jacob Forward, and Stephen Lewis, Jr., were indicted by the Grand
Jury of York county, Pennsylvania, for that, on the first day
of April, 1837, upon a certain negro woman named Margaret
Morgan, with force and violence they made an assault, and with
force and violence feloniously did take and carry her away from
the county of York, within the Commonwealth of Pennsylvania,
to the state of Maryland, with a design and intention there to
sell and dispose of the said Margaret Morgan, as and for a slave
and servant for life.
Edward Prigg, one of the defendants, having been arraigned,
pleaded not guilty.
The cause was tried before the Court of Quarter Sessions of
York county, on the 22d day of May, 1839 ; and the jury found
the following special verdict :
" That at a session of the General Assembly of the Common-
wealth of Pennsylvania, hold en at the city of Philadelphia, on
the first day of March, 1780, the following law was passed and
enacted, to wit : " An act for the gradual abolition of slavery :
1. Sec. III. All persons as well negroes and mulattoes as others,
who shall be born within this state, shall not be deemed and con-
sidered as servants for life, or slaves ; and all servitude for life, or
slavery of children in consequence of the slavery of their mothers,
in the case of all children born within this state from and after
the passing of this act as aforesaid, shall be and hereby is, utterly
taken away, extinguished, and forever abolished.
2. Sec. IV. Provided always, that every negro and mulatto
2
10 SUPREME COURT.
[Prigg t'. The Commonwealth of Pennsylvania.
child barn within this state after the passing of this act as afore-
said, (who would, in case this act had not been made, have been
born a servant for years, or life, or a slave,) shall be deemed to be,
and shall be, by virtue of this act, the servant of such persons, or
her or his assigns, who *vould in such case have been entitled to
like relief in case he or she shall be evilly treated by his or her
master or mistress, and to like freedom dues, and other privileges,
as servants bound by indenture for four years are or may be
entitled ; unless the person to whom the service of any such
child shall belong, shall abandon his or her claim to the same ; in
which case the overseers of the poor of the city, township, or
district respectively, where such child shall be so abandoned, shall
by indenture bind out every child so abandoned, as an apprentice,
for a time not exceeding the age herein before limited for the
service of such children.
3. Sec. V. Every person who is or shall be the owner of any
negro or mulatto slave or servants for life, or till the age of thirty-
one years, now within this state, or his lawful attorney, shall, on
or before the first day of November next, deliver or cause to be
delivered in writing to the clerk of the peace of the county, or to
the clerk of the Court of Sessions of the city of Philadelphia, in
which he or she shall respectively inhabit, the name and sur-
name and occupation or profession of such owner, and the name
of the county and township, district or ward wherein he or she
resideth ; and also the name and names of any such slave and
slaves, and servant and servants for life, or till the age of thirty-
one years, within this state, who shall be such on the said first
day of November next, from all other persons ; which particu-
lars shall by said clerk of the sessions and clerk of the said city
court, be entered in books to be provided for that purpose by the
said clerks ; and no negro or mulatto now within this state shall
from and after the said first day of November, be deemed a slave
or servant for life, or till the age of thirty-one years, unless his or
her name shall be entered as aforesaid on such records, except
such negro or mulatto slaves and servants as are hereinafter
excepted ; the said clerk to be entitled to a fee of two dollars for
each slave or servant so entered as aforesaid, from the treasury
of the county, to be allowed to him in his accounts.
4. Sec. VI. Provided always, that any person in whom the
JANUARY TERM, 1842.
11
[Prigg v. The Commonwealth of Pennsylvania.]
ownership or right to the service of any negro or mulatto shall
be vested at the passing of this act, other than such as are here-
inbefore excepted, his or her heirs, executors, administrators, and
assigns, and all and every of them, severally shall be liable to the
overseers of the poor of the city, township, or district to which
any such negro or mulatto shall become chargeable, for such
necessary expense, with costs of suit thereon, as such overseers
may be put to, through the neglect of the owner, master, or mis-
tress of such negro or mulatto, notwithstanding the name and
other descriptions of such negro or mulatto shall not be entered
and recorded as aforesaid, unless his or her master or owner shall,
before such slave or servant obtain his or her twenty-eighth year,
execute and record in the proper county, a deed or instrument
securing to such slave or servant his or her freedom.
6. Sec. VIII. In all cases wherein sentence of death shall be
pronounced against a slave, the jury before whom he or she shall
be tried, shall appraise and declare the value of such slave ; and
in case such sentence be executed, the court shall make an order
on the state treasurer, payable to the owner for the same, and for
the costs of prosecution ; but in case of remission or mitigation,
for the costs only.
7. Sec. IX. The reward for taking up runaway and abscond-
ing negro and mulatto slaves and servants, and the penalties for
enticing away, dealing with, or harbouring, concealing or employ-
ing negro and mulatto slaves and servants, shall be the same, and
shall be recovered in like manner, as in case of servants bound
for four years.
8. Sec. X. No man or woman, of any nation or colour, except
the negroes and mulattoes who shall be registered as aforesaid,
shall at any time hereafter be deemed adjudged or holden, within
the territories of this Commonwealth, as slaves or servants for
life, but as free-men and free-women ; except the domestic slaves
attending upon delegates in Congress from the other American
states, foreign ministers and consuls, and persons passing through
or sojourning in this state, and not becoming resident therein, and
seamen employed in ships not belonging to any inhabitant of this
state, nor employed in any ship owned by any such inhabitant ;
provided, such domestic slaves shall not be alienated or sold to
any inhabitant, nor (except in the case of members of Congress,
/
12 SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
foreign ministers and consuls) retained in this state longer than
six months.
9. Sec. XI. (Repealed 25th March, 1826.)
Sec. XII. And whereas attempts may be made to evade this
act, by introducing into this state negroes and mulattoes bound
by covenant to serve for long and unreasonable terms of years,
if the same be not prevented Therefore,
10. Sec. XIII. No covenant of personal servitude or appren-
ticeship whatsoever, shall be valid or binding on a negro or mu-
latto for a longer time than seven years, unless such servant
apprentice were, at the commencement of such servitude or
apprenticeship, under the age of twenty-one years; in which
case such negro or mulatto may be holden as a servant or ap-
prentice, respectively, according to the covenant, as the case shall
be, until he or she shall attain the age of twenty-eight years, but
no longer.
Sec. XIV. That this act or any thing herein contained shall not
give any relief or shelter to any absconding or runaway negro or
mulatto slave or servant, who has absconded himself or shall
abscond himself from his or her owner, master or mistress,
residing in any other state or country ; but such owner, master
or mistress shall have like right and aid to demand, claim, and
take away his slave or servant, as he might have had in case this
act had not been made ; and that all negro and mulatto slaves
now owned and heretofore resident in other states, who have
absconded themselves or been clandestinely carried away, or who
may be employed abroad as seamen, and have not absconded or
been brought back to their owners, masters, or mistresses before
the passing of this act, may within five years be registered as
effectually as is ordered by this act concerning those who are not
within this state, on producing such slave before any two justices
of the peace, and satisfying the said justices by due proof of his
former residence, absconding, running away, or absence of such
slaves as aforesaid, who thereupon shall direct and order the said
slaves to be entered on the record as aforesaid."
And the jurors further found, that at a session of the Gene-
ral Assembly of the Commonwealth of Pennsylvania, holden at
the city of Philadelphia, on the 29th day of March, 1788, the
JANUARY TERM, 1842.
13
[Prigg v. The Commonwealth of Pennsylvania.]
following law was passed and enacted, "An act to explain
and amend 'An act for the gradual abolition of slavery.' "
"Sec. L For preventing many evils and abuses arising from ill-
disposed persons availing themselves of certain defects in the act
for the gradual abolition of slavery, passed on the first day of
March, in the year of our Lord one thousand seven hundred and
eighty, be it enacted :
Sec. II. The exception contained in the tenth section of the act
of the first of March, one thousand seven hundred and eighty,
relative to domestic slaves, attending upon persons passing through
or sojourning in this state, and not becoming resident therein, shall
not be deemed or taken to extend to the slaves of such persons as
are inhabitants of or resident in this state, or who shall come here
with an intention to settle and reside ; but all and every slave or
slaves who shall be brought into this state by persons inhabiting
or residing therein, or intending to inhabit or reside therein, shall
be immediately considered, deemed, and taken to be free, to all
intents and purposes.
Sec. III. No negro or mulatto slave, or servant for term of
years, (except as in the last exception of the tenth section of the
said act, is excepted,) shall be removed out of this state, with the
design and intention that the place of abode or residence of such
slave or servant shall be thereby altered or changed, or with the
design and intention that such slave or servant, if a female and
pregnant, shall be detained and kept out of this state till her
delivery of the child of which she is or shall be pregnant, or with
the design and intention that such slave or servant shall be brought
again into this state, after the expiration of six months from the
time of such slave or servant having been first brought into this
state, without his or her consent, if of full age, testified upon a
private examination, before two justices of the peace of the city
or county in which he or she shall reside, or being under the age
of twenty-one years without his or her consent, testified in man-
ner aforesaid, and also without the consent of his or her parents,
if any such there be, to be testified in like manner aforesaid, where-
of the said justices, or one of them, shall make a record, and
deliver to the said slave or servant a copy thereof, containing the
name, age, condition, and the place of abode of such slave or
servant, the reason of such removal, and the place to which he
B
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14 SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
or she is about to go ; and if any person or persons whatsoever
shall sell or dispose of any such slave or servant to any person
out of this state, or shall send or carry, or cause to be sent or
carried, any such slave or servant out of this state, for any of the
purposes aforesaid, whereby such slave or servant would lose
those benefits and privileges which by the laws of this state are
secured to him or her, and shall not have obtained all such con-
sent as by this act is required, testified in the manner before men-
tioned, every such person and persons, his and their aiders and
abettors, shall severally forfeit and pay, for every such offence,
the sum of seventy-five pounds, to be recovered in any Court of
record, by an action of debt, bill, plaint, or information, at the
suit of any person who will sue for the same ; one moiety there-
of, when recovered, for the use of the plaintiff, the other moiety
for the use of the poor of the city, township, or place from which
such slave or servant shall be taken and removed.
Sec. IV. All persons who now are, or hereafter shall be, pos-
sessed of any child or children, born after the first day of March,
one thousand seven hundred and eighty, who would by the said
act be liable to serve till the age of twenty-eight years, shall on
or before the first day of April, one thousand seven hundred and
eighty-nine, or within six months next after the birth of any such
child, deliver, or cause to be delivered, in writing to the clerk of
the place of the county, or the clerk of the Court of Record of
the city of Philadelphia, in which they shall respectively inhabit,
the name, sur-name, and occupation or profession of such pos-
sessor, and of the county, township, district, or ward, in which
they reside, and also the age, (to the best of his or her know-
ledge,) name and sex of every such child,or children, under the pain
and penalty of forfeiting and losing all right and title to every such
child and children, and of him, her, or them, immediately becom-
ing free, which said return or account in writing shall be verified
by the oath or affirmation of the party, which the said clerks are
hereby respectively authorized and required to administer, and
the said clerks shall make and preserve records thereof, copies
and extracts of which shall be good evidence in all Courts of jus-
tice, when certified under their hands and seals of office, for which
oath or affirmation, and entry on extract, the said clerks shall be
respectively entitled to one shilling and six pence, and no more,
JANUARY TERM, 1842.
15
[Prigg v. The Commonwealth of Pennsylvania.]
to be paid by him or her, who shall so as aforesaid make such
entry, or demand the extract aforesaid.
And whereas it has been represented to this house, that vessels
have been fitted out and equipped in this port, for the iniquitous
purpose of receiving and transporting the natives of Africa to
places where they are held in bondage, and it is just and proper
to discourage, as far as possible, such proceedings in future :
Sec. V. If any person or persons shall build, fit, equip, man,
or otherwise prepare, any such ship or vessel, within any port of
this state, or shall cause any ship or other vessel to sail from any
port of this state, for the purpose of carrying on a trade or traffic
in slaves, to, from, or between Europe, Asia, Africa, or America,
or any place or countries whatsoever, or of transporting slaves to
or from one port or place to another, in any part or parts of the
world, such ship or vessel, her tackle, furniture, apparel, and
other appurtenances, shall be forfeited to the commonwealth, and
shall be liable to be seized and prosecuted by any officer of the
customs, or other person, by information in vene, in the Supreme
Court or in the County Court of Common Pleas for the county
wherein such seizure shall be made : whereupon such proceed-
ings shall be had, both unto and after judgment, as in and by the
impost laws of this commonwealth in case of seizure is directed.
And moreover, all and every person and persons so building,
fitting out, manning, equipping, or otherwise preparing or send-
ing away any ship or vessel, knowing or intending that the same
shall be employed in such trade or business, contrary to the true
intent and meaning of this act, or in any wise aiding or abetting
therein, shall severally forfeit and pay the sum of one thousand
pounds, one moiety thereof to the use of the commonwealth, and
the other moiety thereof to the use of him or her who will sue
for the same, by action, debt, bill, plaint, or information.
And whereas the practice of separating, which is too often
exercised by the masters and mistresses of negro and mulatto
slaves, or servants for term of years, in separating husbands and
wives, and parents and children, requires to be checked, so far as
the same may be done without prejudice to such masters or mis-
tresses :
Sec. VI. If any owner or possessor of any negro, mulatto slave
or slaves, or servant or servants for term of years, shall, from and
16 SUPREME COURT.
[Prigg r. The Commonwealth of Pennsylvania.]
after the first day of July next, separate or remove, or cause to be
separated or removed, a husband from his wife, or wife from her
husband, a child from his or her parents, or a parent from a child,
or any or either of the descriptions aforesaid, to a greater distance
than ten miles, with the design and intention of changing the.
habitation or place of abode of such husband or wife, parent or
child, unless such child shall be above the age of four years, with-
out the consent of such slave or servant for life or years shall
have been obtained and testified in the manner hereinbefore de-
scribed, such person or persons shall severally forfeit and pay the
sum of fifty pounds, with costs of suit, for every such offence, to
be recovered by action of debt, bill, plaint, or information, in the
Supreme Court or in any Court of Common Pleas, at the suit of
any person who will sue for the same, one moiety thereof, when
recovered, for the use of the plaintiffs, the other moiety for the
use of the poor of the city, township, or place, from which said
husband or wife, parent or child, shall have been taken and re-
moved."
(Sec. VII. Repealed 27th March, 1820, and 25th March, 1826.)
And the jurors further found, that at a session of the General
Assembly of the Commonwealth of Pennsylvania, holden at Har-
risburg, on the 25th day of March, 1826, the following law was
passed, « An act to give effect to the provisions of the Constitution
of the United States relative to fugitives from labour, for the pro-
tection of free people of colour, and to prevent kidnapping."
"Sec. I. If any person or persons shall from and after the pass-
ing of this act, by force and violence, take and carry away, or
cause to be taken or carried away, and shall by fraud or false
pretence, seduce, or cause to be seduced, or shall attempt so to
take, carry away, or seduce any negro or mulatto from any part
or parts of this commonwealth, to any other place or places,
whatsoever, out of this commonwealth, with a design and inten-
tion of selling and disposing of, or of causing to be sold, or of
keeping and detaining, or of causing to be kept and detained,
such negro or mulatto, as a slave or servant for life, or for any
term whatsoever, every such person, or persons, his or their
aiders or abettors, shall on conviction thereof, in any Court of this
commonwealth having competent jurisdiction, be deemed guilty
of a felony, and shall forfeit and pay at the discretion of the Court
JANUARY TERM, 1842.
17
[Prigg v. The Commonwealth of Pennsylvania.]
passing the sentence, a sum not less than five hundred, nor more
than one thousand dollars, one-half thereof shall be paid to the
person or persons who shall prosecute for the same; and the other
half to this commonwealth ; and moreover shall be sentenced to
undergo a servitude for any term or terms not less than seven
years, nor exceeding twenty-one years, and shall be confined and
kept to hard labour, fed and clothed in the manner as is directed,
by the penal laws of this commonwealth, for persons convicted
of robbery.
Sec. II. If any person or persons shall hereafter, knowingly
sell, transfer, or assign, or shall knowingly purchase, take, or
transfer on assignment of any negro or mulatto, for the purpose
of fraudulently removing, exporting, or carrying said negro or
mulatto out of this state, with the design or intent by fraud or
false pretences of making him or her a slave or servant for life,
or for any term whatsoever, every person so offending shall be
deemed guilty of a felony, and on conviction thereof, shall forfeit
and pay a fine of not less than five hundred dollars, nor more
than two thousand dollars, one-half whereof shall be paid to the
person or persons who shall prosecute for the same, and the other
half to the commonwealth ; and moreover shall be sentenced at
the discretion of the Court to undergo a servitude for any term or
time not less than seven years, nor exceeding twenty-one years,
and shall be confined, kept to hard labour, fed and clothed in the
same manner as is directed by the penal laws of this common-
wealth for persons convicted of robbery.
Sec. III. When a person held to labour or servitude in any of
the United States, or in either of the territories thereof, under the
laws thereof, shall escape into this commonwealth, the person to
whom such labour or service is due, his or her duly authorized
agent or attorney, constituted in writing, is hereby authorized to
apply to any judge, justice of the peace, or alderman, who on
such application, supported by the oath or affirmation of such
claimant or authorized agent or attorney, as aforesaid, that the
said fugitive hath escaped from his or her service, or from the
service of the person for whom he is duly constituted agent or
attorney, shall issue his warrant under his hand and seal, and
directed to the sheriff, or any constable of the proper city or
county, authorizing and empowering said sheriff, or constable, to
3 b 2
18 SUPREME COURT.
[Prigg t\ The Commonwealth of Pennsylvania.]
arrest and seize the said fugitive, who shall be named in said
warrant, and to bring said fugitive before a judge of the proper
county, which said warrant shall be in the form or to the follow-
ing effect :
" State of Pennsylvania, county ; ss.
The Commonwealth of Pennsylvania to the sheriff or any
constable of county, greeting.
Whereas, it appears by the oath, or solemn affirmation of
, that , was held to labour or service to
, of county, in the state of , and the
said hath escaped from the labour and service of
the said , you are therefore commanded to arrest
and seize the body of the said if he be found in
your county, and bring him forthwith before the person issuing
the warrant, if a judge (or if a justice of the peace or alderman)
before a judge of the Court of Common Pleas, or of the District
Court, as the case may be, of your proper county, or recorder of
a city, so that the truth of the matter may be inquired into, and
the said be dealt with as the constitution of the
United States, and the laws of this Commonwealth direct.
Witness our said judge (or alderman, or justice, as the case
may be) at this day of , in the year of our Lord
one thousand eight hundred and .
By virtue of such warrant the person named therein may be
arrested by the proper sheriff, or constable to whom the same
shall be delivered, within the proper city or county.
Sec. IV. No judge, justice of the peace, or alderman shall
issue a warrant on the application of any agent or attorney as
provided in the said third section, unless the said agent or attorney
shall, in addition to his own oath, or affirmation, produce the
affidavit of the claimant of the fugitive, taken before and certified
by a justice of the peace or other magistrate authorized to admi-
nister oaths in the state or territory in which such claimant shall
reside, and accompanied by the certificate of the authority of
such justice or other magistrate to administer oaths, signed by
the clerk or prothonotary, and authenticated by the seal of a court
of record, in such state or territory, which affidavit shall state the
JANUARY TERM, 1842.
19
[Prigg v. The Commonwealth of Pennsylvania.]
said claimant's title to the service of such fugitive, and also the
name, age, and description of the person of such fugitive.-
Sec. V. It shall be the duty of any judge, justice of the peace,
or alderman, when he grants or issues any warrant under the
provisions of the third section of this act, to make a fair record
on his docket of the same, in which he shall enter the name and
place of residence of the person on whose oath or affirmation the
said warrant may be granted ; and also if an affidavit shall have
been produced under the provisions of the fourth section of
this act, the name and place of residence of the person making
such affidavit, and the age and description of the person of the
alleged fugitive contained in such affidavit, and shall, within ten
days thereafter, file a certified copy thereof in the office of the
clerk of the Court of General Quarter Sessions of the peace, or
Mayor's Court of the proper city or county ; and any judge, jus-
tice of the peace or alderman, who shall refuse or neglect to com-
ply with the provisions of this section, shall be deemed guilty of
a misdemeanor in office, and shall, on conviction thereof, be sen-
tenced to pay, at the discretion of the Court, any sum not exceed-
ing one thousand dollars, one-half to the party prosecuting for
the same, and the other half to the commonwealth. And any
sheriff or constable, receiving and executing the said warrant,
shall without unnecessary delay, carry the person arrested before
the judge, according to the exigency of the warrant. And any
sheriff or constable who shall refuse or wilfully neglect so to do,
shall, on conviction thereof, be sentenced to pay, at the discretion
of the Court, any sum not exceeding five hundred dollars, one-
half to the party prosecuting for the same, and the other half to
the commonwealth, or shall also be sentenced to imprisonment,
at hard labour, for a time not exceeding six months, or both.
Sec. VI. The said fugitive from labour or service, when so
arrested, shall be brought before a judge as aforesaid, and upon
proof to the satisfaction of such judge that the person so seized
or arrested, doth under the laws of the 1 state or territory from
which she or he fled from service or labour, to the person cln lin-
ing him or her, it shall be the duty of such judge to give a certi-
ficate thereof to such claimant, his or her duly authorized agent
or attorney, which shall be sufficient warrant for removing the
said fugitive to the state or territory from which she or he fled :
20
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
Provided, That the oath of the owner or owners, or other person
interested, shall in no case be received in evidence before the
judge on the hearing of the case.
Sec. VII. When the fugitive shall be brought before the judge,
agreeably to the provisions of this act, and either party allege
and prove to the satisfaction of the said judge that he or she is
not prepared for trial, and have testimony material to the matter
in controversy that can be obtained in a reasonable time, it shall
and may be lawful, unless security satisfactory to the said judge
be given for the appearance of the said fugitive, on a day certain
to commit the said fugitive to the common jail for safe keeping,
there to be detained at the expense of the owner, agent, or attor-
ney for such time as the judge shall think reasonable and just,
and to a day certain, when the said fugitive shall be brought
before him by habeas corpus in the courthouse of the proper
county, or in term time at the chamber of the said judge, for final
hearing and adjudication: Provided, That if the adjournment
of the hearing be requested by the claimant, his agent or attorney,
such adjournment shall not be granted unless the said claimant,
his agent or attorney, shall give security satisfactory to the judge
to appear and prosecute his claim on the day to which the hear-
ing shall be adjourned : Provided, That on the hearing last men-
tioned, if the judge committing the said fugitive, or taking the
security as aforesaid, should be absent, sick, or otherwise unable
to attend, it shall be the duty of either of the other judges, on
notice given, to attend to the said hearing, and to decide thereon.
Sec. VIII. The officer which may or shall be employed in the
execution of the duties of this act shall be allowed the same fees
for service of process that sheriffs within this commonwealth are
now allowed for serving process in criminal cases, and two dollars
and fifty cents per day for each and every day necessarily spent
in performing the duties enjoined on them by this act, to be paid
by the owner, agent, or attorney, immediately on the perform-
ance of the duties aforesaid.
Sec. IX. No alderman or justice of the peace of this common-
wealth shall have jurisdiction or take cognisance of the case
of any fugitive from labour from any of the United States or
territories under a certain act of Congress, passed on the tenth
day of February, one thousand seven hundred and ninety-three.
JANUARY TERM, 1842.
21
[Prigg v. The Commonwealth of Pennsylvania.]
entitled "An act respecting fugitives from justice, and persons
escaping from the service of their masters;" nor shall any al-
derman or justice of the peace of this commonwealth issue or
grant any certificate or warrant of removal of any such fugitive
from labour as aforesaid, except in the manner and to the effect pro-
vided in the third section of this act, upon the application, affidavit,
or testimony of any person or persons whatsoever, under the said
act of Congress, or under any other law, authority, or act of the
Congress of the United States ; and if any alderman or justice
of the peace of this commonwealth shall, contrary to the pro-
visions of this act, take cognisance or jurisdiction of the case of
any such fugitive as aforesaid, except in the manner hereinbefore
provided, or shall grant or issue any certificate or warrant of
removal as aforesaid, then, and in either case he shall be deemed
guilty of a misdemeanor in office, and shall, on conviction there-
of, be sentenced to pay at the discretion of the Court any sum
not less than five hundred dollars, nor exceeding one thousand
dollars, or half thereof, to the party prosecuting for the same,
and the other half to the use of the commonwealth.
Sec. X. It shall be the duty of the judge or recorder of any
Court of Record in this commonwealth when he grants or issues
any certificate or warrant of removal of any negro or mulatto
claimed to be a fugitive from labour to the state or territory from
which he or she fled, in pursuance of an act of Congress passed
the twelfth day of February, one thousand seven hundred and
ninety-three, entitled "An act respecting fugitives from justice
and persons escaping from the service of their masters," and of
this act to make a fair record of the same, in which he shall enter
the age, name, sex, and general description of the person of the
negro or mulatto for whom he shall grant such certificate or
warrant of removal, together with the evidence and the name of
the places of residence of the witnesses, and the party claiming
such negro or mulatto, and shall within ten days thereafter file a
certified copy thereof in the office of trie clerk of the Court of
General Quarter Sessions of the Peace, or Mayor's Court of the
city or county in which he may reside.
Sec. XI. Nothing in this act contained shall be construed as a
repeal or alteration of any part of an act of assembly passed the
first day of March, one thousand seven hundred and eighty,
II
22 SUPREME COURT.
[Prigg r. The Commonwealth of Pennsylvania.]
entitled "An act for the gradual abolition of slavery," except the
eleventh section of said act, which is hereby repealed and sup-
plied, nor of any part of an act of assembly passed on the twenty-
eighth day of March, one thousand seven hundred and eighty-
eight, entitled "An act to explain and amend an act for the
gradual abolition of slavery," except the seventh section of this
last mentioned act, which is hereby supplied and repealed."
And the jurors further found, that the negro woman, Margaret
Morgan, in the within indictment mentioned, came into the state
of Pennsylvania from the state of Maryland, some time in the
year eighteen hundred and thirty-two ; that at that time, and for
a long period before that time, she was a slave for life, held to
labour, and owing service or labour for, under, and according to
the laws of the said state of Maryland, one of the United States,
to a certain Margaret Ashmore, a citizen of the state of Maryland,
residing in Hartford county, and that the said negro woman,
Margaret Morgan, escaped and fled from the state of Maryland
without the knowledge and consent of the said Margaret Ash-
more ; that in the month of February, eighteen hundred and
thirty-seven, the within named defendant, Edward Prigg, was
duly and legally constituted and appointed by the said Margaret
Ashmore, her agent or attorney, to seize and arrest the said negro
woman, Margaret Morgan, as a fugitive from labour, and to re-
move, take, and carry her from this state into the state of Mary-
land, and there deliver her to the said Margaret Ashmore ; that
as such agent or attorney the said Edward Prigg afterwards, and
in the same month of February, eighteen hundred and thirty-
seven, before a certain Thomas Henderson, Esquire, then being
a justice of the peace in and for the county of York, in this state,
made oath that the said negro woman, Margaret Morgan, had
fled and escaped from the state of Maryland, owing service or
labour for life, under the laws thereof, to the said Margaret Ash-
more ; that the said Thomas Henderson, so being such justice of
the peace as aforesaid, thereupon issued his warrant, directed to
one William M'Cleary, then and there being a regularly appointed
constable in and for York county, commanding him to take the
said negro woman, Margaret Morgan, and her children, and bring
them before the said Thomas Henderson, or some other justice
of the peace for said county; that the said M'Cleary, in obedience
JANUARY TERM, 1842.
23
[Prigg v. The Commonwealth of Pennsylvania.]
to said warrant, did accordingly take and apprehend the said
negro woman, Margaret Morgan, and her children, in York
county aforesaid, and did bring her and them before the said
Thomas Henderson ; that the said Henderson thereupon refused
to take further cognisance of said case, and that the said Prigg
afterwards, and without complying with the provisions of the
said act of the General Assembly of the Commonwealth of Penn-
sylvania, passed the 25th of March, 1826, entitled "An act to
give effect to the provisions of the Constitution of the United
States relative to fugitives from labour, for the protection of free
people of colour, and to prevent kidnapping," did take, remove,
and carry away the said negro woman, Margaret Morgan, and
her children, mentioned in said warrant, out of this state into the
state of Maryland, and did there deliver the said woman and
children into the custody and possession of the said Margaret
Ashmore.
And further say, that one of the said children so taken, removed,
and carried away, was born in this state more than one year after
the said negro woman, Margaret Morgan, had fled and escaped
from the state of Maryland as aforesaid.
But whether or not upon the whole matter aforesaid, by the
jurors aforesaid in form aforesaid, found, the said Edward Prigg
be guilty in manner and form as he stands indicted the jurors
aforesaid are altogether ignorant, and therefore pray the advice
of the Court, and if, upon the whole matter aforesaid it shall seem
to the said Court that the said Edward Prigg is guilty, then the
jurors aforesaid, upon their oaths aforesaid, say that the said Ed-
ward Prigg. is guilty in manner and form as he stands indicted.
But if upon the whole matter aforesaid, it shall seem to the
said Court, that the said Edward Prigg is not guilty, then the
jurors aforesaid, upon their oaths aforesaid, say that the said
Edward Prigg is not guilty in manner and form as he stands
indicted."
This special verdict was, under an agreement between Messrs.
Meredith and Nelson, counsel for Edward Prigg, and Mr.
Johnson, the attorney-general of Pennsylvania, taken under the
provisions of an act of the Assembly of Pennsylvania, passed
22d of May, 1839 ; and by agreement, the Court gave judg-
24 SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
ment against Edward Prigg, on the finding of the jury and the
indictment.
The defendant prosecuted a writ of error to the Supreme Court
of Pennsylvania to May term, 1840. On the 23d May, 1840,
the following errors were assigned before the Court, by Mr. Mere-
dith, and Mr. Nelson, who represented the state of Maryland, as
well as the defendant.
The plaintiff in error suggests to the Supreme Court here, that
the judgment rendered in the Court of Oyer and Terminer of
York county in this case, should be reversed for the reason fol-
lowing, viz. : That the act of Assembly of the Commonwealth of
Pennsylvania, set out in the record in the said cause, is repugnant
to the provisions of the Constitution of the United States, and is
therefore void.
The Supreme Court affirmed, pro forma, the judgment of the
Court of Oyer and Terminer ; and the defendant, Edward Prigg,
prosecuted this writ of error.
The case was argued, for the plaintiff in error, by Mr. Mere-
dith and Mr. Nelson, under authority to appear in the case for
the state of Maryland; and by Mr. Johnson, the attorney-
general of Pennsylvania, and Mr. Hambly, for the Common-
wealth of Pennsylvania.
The arguments of all the counsel, with the exception of that
of Mr. Nelson, which has not been received, have been by them,
respectively, furnished to the reporter.
The counsel for the plaintiff in error contended :
That the law of Pennsylvania, on which the indictment of the
defendant founded, was unconstitutional,
1. Because Congress has the exclusive power of legislation
upon the subject-matter of the said constitutional provision, which
power has been exercised by the act of the 12th February, 1793.
2. That if this power is not exclusive, still the concurrent power
of the state legislatures is suspended by the actual exercise of the
federal power.
3. That if not suspended, still the statute of Pennsylvania, in
all its provisions applicable to this case, is in direct collision with
the act of Congress ; and is therefore unconstitutional and void.
JANUARY TERM, 1842.
25
[Prigg v. The Commonwealth of Pennsylvania.]
Mr. Meredith, for the state of Maryland ; interposing in behalf
of the plaintiff in error ; adverted to the special act of the legis-
lature of Pennsylvania, of the 22d of May, 1839, as the result
of a negotiation between that state and Maryland, the object of
which was to settle, by the authoritative decision of the Supreme
Court of the Union, the power of state legislation, over that pro-
vision of the Constitution of the United States, which relates to
fugitive slaves. He then briefly stated the facts of the particu-
lar case, as found by the special verdict; and referring to the
provisions of the act of Congress of the 12th of February, 1793,
respecting fugitives from justice, and persons escaping from the
service of their masters, and to the several sections of the Penn-
sylvania law of the 25th of March, 1826, which had given rise
to the controversy between the two states, he remarked, that the
validity of this law depended entirely upon the constitutionality
of the act of Congress. If that act was constitutionally passed,
he argued that it was wholly immaterial to inquire whether it
was passed in the exercise of an exclusive or of a concurrent
power of legislation. Because, in either case, the conclusion
would be the same. The Pennsylvania law must be declared
inoperative and void, and the judgment of her Courts, which he
was about to examine, must necessarily be reversed.
If this should appear to be a proper view of the question
presented by the record ; if it depended solely upon the constitu-
tionality of the act of Congress ; the whole matter, as he believed,
would be found to lie within very narrow limits. But, undoubt-
edly, the cause itself, looking to the consequences of its decision
by the tribunal he addressed, was one of deep and pervading
interest. It involved matters of high concernment, not only to
the two sovereign states, which stood before the Court as the im-
mediate parties to the controversy ; but to those other states of
the Union, which, with reference to the questions at issue, occu-
pied the same relative position. Indeed, it would perhaps be not
too much to say, that the case was one of vital interest to the
peace and perpetuity of the Union itself. For he believed that
to the interference of state legislation, might justly be ascribed
much of that exasperation of public sentiment, which unhappily
prevailed upon a subject that seemed every day to assume a more
malignant and threatening aspect. It was lit, therefore, that such
3 C
26 SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
a cause should receive not only a careful, but a thorough exami-
nation, before it was finally passed upon by the conclusive judg-
ment of the Court.
That he might render what assistance was in his power to this
end, he proposed to consider the case, with a view of maintain-
ing the three following propositions :
1. That Congress has the exclusive power of legislation upon
the subject-matter of the constitutional provision in question.
2. That if the power is not exclusive, still, from its very nature,
the concurrent power of the state legislatures is suspended by
the actual exercise of the federal power. And
3. That if the power is not suspended over the whole subject-
matter of the provision, still it cannot be constitutionally exercised,
so as to conflict with federal legislation ; and consequently, that
the law of Pennsylvania, so far as it was applied upon the indict-
ment to the case of the plaintiff in error, is void and inoperative ;
because its provisions are in direct collision with those of the
act of Congress.
Before proceeding to discuss these propositions, he observed,
that there was a preliminary inquiry on which it would be
proper to bestow a brief attention. And that was, whether this
constitutional provision required legislation ; whether, proprio
vigore, it was not sufficient of itself, and by itself, to effectuate the
object it contemplated. He did not, it was true, anticipate such
a construction from the learned counsel for the state of Pennsyl-
vania : for, if successfully maintained, it would be fatal to their
case. Because it was clear beyond all doubt, that if the legisla-
tion of Congress is inhibited on the ground that the Constitution
neither intends nor requires legislative regulation, the same
reason must necessarily exclude the legislation of the states; and
therefore, in reference to the present case, if the Constitution effects
its own purposes, by its own unassisted strength, the law of
Pennsylvania, which professes by its title " to give effect to the
provisions of the Constitution of the United States, relative to
fugitives from labour," is at best a mere work of legislative
supererogation, wholly futile and inoperative. It was not, there-
fore, he said, in its direct bearing upon the case, that he deemed
the inquiry important; but because, elsewhere, in legislative
assemblies, as well as in judicial forums, this construction had
JANUARY TERM, 1842.
27
[Prigg v. The Commonwealth of Pennsylvania.]
been so gravely insisted on as to deserve at least a passing
notice.
A very brief examination of the provision in the Constitution,
would, he thought, make it manifest that it looks to subsequent
legislative enactments. The first clause prohibits the states from
passing any law, or adopting any regulation by which fugitives
from labour may be discharged from service. If the provision
had stopped there, he admitted that legislation would have been
unnecessary. Because a state law, in violation of so express a
prohibition, would be ipso facto void. And the judicial power,
extending to all cases arising under the Constitution, would be
unquestionably competent so to declare it. But the next clause
of the provision is of a different character. It guarantees a
right ; and enjoins a duty. It declares that the fugitive shall be
delivered up, on claim, to the party to whom his service or labour
may be due. Here, then, are two acts to be done. A claim is
to be made ; but the mode in which it is to be made, and the
forms to be observed in making it, are not provided for. Again,
a delivery is required ; but from whom, and in what manner,
and on what condition, the Constitution does not prescribe. Re-
gulations upon these points were indispensable to elfectuate the
object, and they were left to legislative enactments. And very
properly so, because it is the office of a written constitution to
establish general principles only, leaving them to be carried out
by future legislation.
Mr. Meredith then adverted to the history and origin of the act
of Congress, of the 12th of February, 1793, as the strongest illus-
tration of the necessity of such legislation ; and for this purpose re-
ferred to the first volume of State Papers, title Miscellaneous, page
3S et seq. It appeared from these documents, that in the year
1791, but two years after the organization of the government, the.
Governor of Pennsylvania, under the analogous provision in the
Constitution relative to fugitives from justice, made a demand upon
the Governor of Virginia for the surrender and delivery of three
persons, who had been indicted in Pennsylvania for kidnapping a
negro, and carrying him into Virginia. The Governor of Virginia
hesitated upon the course to be pursued, and referred the matter
to the attorney-general of that state, who advised that the demand
ought not to be complied with. In an elaborate opinion, to which
28
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
the Court was referred, he took several objections ; and among
them, the one most strenuously insisted on was, that the Constitu-
tion had provided no means, and prescribed no method, for
carrying the provision into effect. And that Congress had not
supplied such means by any law upon the subject. " If," he said,
" the delivery and removal in question can be effected, it must be
under the authority only of the Constitution of the United States.
By that, the delivery is required, and the removal authorized.
But the manner in which either shall be effected is not pre-
scribed." And again, " The demand cannot be complied with by
the Governor of Virginia, without some additional provision by
law, to enable him to do so." The governor adopted this view
of the subject, and expressed a hope, in communicating his refu-
sal, that the case would furnish an inducement to Congress to
legislate at once upon the constitutional provision. Upon this
refusal, the Governor of Pennsylvania addressed a communication
to the President of the United States, in which he says, " As the
attorney-general of Virginia has suggested another difficulty with
respect to the mode of arresting persons as fugitives from justice,
I have thought the present a proper occasion to bring the subject
into your view ; that by the interposition of the federal legisla-
ture, to whose consideration you may be pleased to submit it,
such regulations may be established, as will in future obviate all
doubt and embarrassment upon a constitutional question so deli-
cate and important." The president, it appears, laid these pro-
ceedings, with the opinion of the attorney-general of the United
States, before Congress ; and the result was, that at the same ses-
sion, the act, as it now stands upon the statute-book, was reported
by a committee ; and was finally passed without opposition, on
the 12th of February, 1793.
The origin then of this act of Congress, so strongly illustrative
of the difficulties and embarrassments which would continually
have arisen, if the article of the Constitution referred to had been
left to execute itself, dispenses with the necessity of all further
argument upon this part of the subject. For it is scarcely neces-
sary to remark, that the same difficulties and embarrassments
would have arisen in reference to the provision regarding fugi-
tives from labour, but for the enactments of the law of 1793. In-
deed, in looking to both provisions, it would be found that the
JANUARY TERM, 1842.
29
[Prigg v. The Commonwealth of Pennsylvania.]
necessity of legislation is obviously much less, in that which con-
cerns fugitives from justice, than in the one now more immedi-
ately under consideration. The act of Congr^s had never been
questioned upon this ground, till the case of Jack v. Martin came
before the Court of Errors of the state of New York. And even
in that case, it was a mere intimation thrown out by the Chan-
cellor, but neither reasoned out, nor relied on. In every other
case, it has been taken for granted that legislation was necessary
to effectuate the object of the framers of the Constitution. In
Wright v. Deacon, 5 Serg. & Rawle, 63, Chief Justice Tilghman,
after quoting the provision, says, " Here is the principle ; — the
fugitive is to be delivered on claim of his master. But it required
a law to regulate the manner in which this principle should be
reduced to practice. It was necessary to establish some mode, in
which the claim should be made, and the fugitive be delivered
up." So also, in the case of the Commonwealth v. Griffith,
2 Pick. Rep. 11. Parker, Chief Justice, says, "The Constitution
does not prescribe the mode of reclaiming a slave, but leaves it to
be determined by Congress. It is very clear that it was not
intended that application should be made to the executive
authority of the state."
It being then indisputable, as the counsel thought, that the Con-
stitution looks to, and requires the aid of legislation to accomplish
its purpose ; he proceeded to argue, that this legislation was
intended to be federal, and exclusive of state legislation. Why,
he asked, was the provision introduced into the Constitution ?
The colonial history of the country would show that at one
period slavery was recognised as a legal institution in all the
provinces ; and that in all of them, a customary or conventional
law prevailed, which conferred upon the owner of a fugitive slave
the right to reclaim him, wherever he might be found. Before
the close of the Revolution, however, public opinion in the north-
ern section of the country, had materially changed with regard to
the policy and humanity of a system, that had unfortunately been
fastened upon the colonies by the power of the mother country,
without regard to their interests and in defiance of repeated
protests. In 1780, Pennsylvania passed an act for the gradual
abolition of slavery. In the same year, Massachusetts, by her
Declaration of Rights, emancipated her slaves. And in a short
c 2
80
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
time afterwards, these examples were followed by all, or nearly-
all of the New England states.
The institution, jjowever, still continued to exist in the south.
The climate of that region, and the products of its soil, peculiarly
adapted to this species of labour, has increased the slave popula-
tion to so great a number, that, at the close of the Revolution, the
system had so intertwined itself with the vital interests of private
property, and with the maintenance of the public safety, as to
render every project, even of gradual abolition, unsafe and imprac-
ticable. During the confederation, the southern states had sus-
tained great inconveniences and loss by the change that had been
effected by the abolition laws of the northern states. The con-
ventional or customary law was no longer observed There was
no provision upon the subject in the articles of confederation. In
many of the northern states no aid whatsoever would be allowed
to the owners of fugitive slaves ; and sometimes indeed they met
with open resistance. 3 Story's Comm. on the Const. 677. "At
present," said Mr. Madison, in the Virginia convention, 2 Elliott's
Deb. 335, "at present, if any slave elopes to any of those states
where slaves are free, he becomes emancipated by their laws. For
the laws of the states are uncharitable to one another in this
respect." And in the North Carolina convention, Mr. Iredell
observed, that, " In some of the northern states they have eman-
cipated their slaves. If any of our slaves go there, they would,
by the present laws, be entitled to their freedom, so that their
masters could not get them again."
It was during this conflict of law, of opinions, and of interests,
between the northern and southern states, that the Constitu-
tion embracing the provision in question was adopted. That
provision, it is well known, was the result of mutual concessions
in reference to the whole subject of slavery. On the one hand
the south agreed to confer upon Congress the power to prohibit
the importation of slaves after the year 1808. On the other, the
north agreed to recognise and protect the existing institutions of
the south. And for that very purpose, the clause in question was
engrafted upon the Constitution. The history of the times proves
that the south regarded, and relied upon it, as an ample security
to the owners of slave property. In the Virginia convention, in
order to satisfy the minds of the people, that property of this
JANUARY TERM, 1842.
31
[Prigg v. The Commonwealth of Pennsylvania.]
description was abundantly protected, Governor Randolph held this
language : " Were it right to mention what passed in convention
on the occasion, I might tell you that the southern states, — even
South Carolina herself, — conceived this property to be secured
by these words."
Such, undoubtedly, was the confidence of the whole south,
in the intention of the framers of the Constitution. Such was
their intention ; and if so, it would seem to follow as a neces-
sary consequence, that they meant to commit ah legislative power
over the subject exclusively to Congress. The provision was
manifestly intended to restore to the south the rights which
the customary law had formerly extended to them, in common
with the other colonies. Those rights had been disregarded by
many of the states. And the apprehension must have forced
itself upon every southern mind in the convention, that if the
provision were left to be carried out by state legislation, it must
prove but a precarious and inadequate protection. The provision,
it is true, yielded the right of the owner to reclaim the fugitive,
in whatever state he might have sought refuge ; but if the power
to regulate the mode in which this provision was to be carried
into practical effect — if the power of enforcing its execution
were left to the states, it could not but have been foreseen that its
whole purpose might be defeated. That the states might either
legislate or not. — In the one case leaving the owner without legal
means to vindicate his rights ; in the other, embarrassing the prose-
cution of them, so as to delay or defeat them. In a word, to borrow
the language of Chief Justice Nelson, whose whole argument upon
this subject, in the case of Jack v. Martin, 12 Wend. Rep. 311,
is entitled to the most attentive consideration of the Court, " the
idea that the framers of the Constitution intended to leave the legis-
lation of this subject to the states, when the provision itself obvi-
ously sprung out of their fears of partial and unjust legislation by
the states, in respect to it, cannot be admitted." The confidence of
the south could only have reposed itself in Congress, " where the
rights and interests of the different sections of the country, liable
to be influenced by local and peculiar causes, would be regulated
with an independent and impartial regard to all."
If such was the intention of the framers of the Constitution,
the next inquiry is, whether it can be effectuated by the express
32
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
or implied powers granted in that instrument. Congress has
legislated upon the subject.- But had it a constitutional authority
to do so ? Is the power thus exercised directly or impliedly given ?
In conducting this inquiry, it is proper, in the first place, to
look to the collateral supports on which this act of Congress rests
for its validity. It was passed only four years after the adoption
of the Constitution. In that Congress were many of the leading
and most distinguished men of the convention. The act was
not passed hastily ; for it was reported in 1791, and finally acted
on in 1793. It was not passed without full consideration; for
the Virginia case, and the different opinions, looking to federal
or state legislation upon a kindred subject, were communicated
to Congress in 1791. Here, then, is a contemporaneous exposi-
tion of the constitutional provision in the act itself, which has
been always regarded by this Court as of very high authority.
A practical exposition, which, in the language of a distinguished
commentator, approaches nearest to a judicial exposition. 1 Story's
Comm. on the Const. 392. It is, indeed, the very case he puts,
having all the incidents of such an exposition. For the authority
of Congress to pass this law was determined after solemn con-
sideration, pro re nata, upon a doubt raised — upon a lis mota,
in the face of the nation — with a view to present action, and in
the midst of jealous interests. To this source of collateral inter-
pretation, it has been already said, this Court is in the habit of
looking with great respect. Among other cases, those of Martin
v. Hunter's lessee, 1 Wheat. Rep. 351, and Cohens v. the State
of Virginia, 6 Wheat. Rep. 418, may be referred to ; for the pur-
pose of showing that the Court has resorted to contemporary
construction — to practical expositions of constitutional powers,
in cases of much more doubt and difficulty than the present.
But further, from the period of its enactment, till very recently,
this act of Congress has been acquiesced in — practically applied
in all the states, and regarded as containing judicious and salu-
tary regulations in reference to both the subjects to which it re-
lates. Ought a construction, time-honoured as this is, to be lightly
disturbed? This Court has already answered the question. It
has held a practice and acquiescence for a much shorter period,
as fixing the construction of the Constitution on a question of at
least quite as much doubt. In the case of Stuart v. Laird,
JANUARY TERM, 1842.
33
[Prigg v. The Commonwealth of Pennsylvania.]
1 Cran. Rep. 309, which involved the constitutionality of the pro-
vision in the judiciary act of 1789, giving to the judges of the
Supreme Court Circuit Court powers, the Court held this language :
" To this objection, which is of recent date, it is sufficient to
observe, that practice and acquiescence under it for a period of
several years, commencing with the organization of the judicial
system, affords an irresistible answer, and has, indeed, fixed the
construction. It is a contemporary interpretation of the most
forcible nature. This practical exposition is too strong and obsti-
nate to be shaken or controlled. Of course the question is at
rest, and ought not now to be disturbed."
But in addition to contemporaneous exposition, and long acqui-
escence, we have the judicial decisions of the three great non-
slaveholding states — Massachusetts, New York, and Pennsyl-
vania ; in which the constitutionality of this act of Congress was
challenged and sustained. Commonwealth v. Griffith, 2 Pick.
Rep. 11 4 Wright v. Deacon, 5 Serg. and Rawle's Rep. 63; Jack
v. Martin, 12 Wend. Rep. 312.
So, too, in every case before the Circuit Court of the United
States, the provisions of this act of Congress have been judicially
dealt with, without a question as to its constitutionality. It is
submitted, therefore, that a very clear case of construction ought
to be made out, to shake even the collateral supports on which
this law rests.
But if the question can still be considered an open one, there
is no difficulty in showing that the power of legislation in re-
ference to this subject is granted by the Constitution to Congress.
It would be strange if it were not so ; strange, if upon a subject
of such intense and general interest, to which the mind of the
convention had been so directly called, they had left their work
unfinished; their purpose unaccomplished. It has been said,
however, and may again be said, that the legislative power of
federal government is a limited one ; that the Constitution enu-
merates the cases in which it may be exercised, but that this is
not among the number. That besides these enumerated cases,
a general power is given to Congress to pass all laws necessary
and proper to carry into execution all powers granted by the
Constitution to the government, or any of its departments or
officers. But that there is no power so granted in reference to
5
34
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
this provision. Is this so ? The Constitution declares that slaves
escaping from service shall be delivered up, on claim, to the
person to whom such service shall be due. What is the meaning
of these words " on claim ?" They look to a proceeding of a
judicial character ; to an assertion of the right of property, to be
made before a tribunal competent to judge and decide ; and to
execute that decision, by a delivery of the property, if the claim
be established. Is not this, then, a part of the judicial power,
which extends to all cases at law and in equity, arising under the
Constitution, laws, and treaties of the United States? Is not
every such claim a legal claim ? and when asserted, is it not a
case at law arising under the Constitution ?
If then the judicial power extends to cases falling within this
provision of the Constitution, Congress had an unquestionable
right to vest it. It was a duty to vest it ; because this Court
has decided that the language of the Constitution in regard to
the impartment of the judicial power is imperative upon Con-
gress. Martina. Hunter, 1 Wheat. Rep. 304, 316.
The judiciary act of 1789 does not cover the whole judicial
power under the Constitution. Subsequent legislation has sup-'
plied many omissions in that act, of which the act of 1793 is an
instance, vesting in the Circuit and District Courts that portion
of the judicial power which is embraced by the second and third
sections of the fourth article of the Constitution.
It is true that the act does not prescribe a judicial proceed-
ing according to the forms of the common law. But in the same
case of Martin v. Hunter, this Court has said, that in vesting the
judicial power, Congress may parcel it out in any mode and form
in which it is capable of being exercised. The act contemplates
a summary proceeding, but still of a judicial character. It pro-
vides for the preliminary examination of a fact, for the purpose
of authorizing a delivery and removal to the jurisdiction most
proper for the final adjudication of that fact ; to the state on the
laws of which the claim to service depends. But this examination
is judicial in its character. The parties, — claimant, and alleged
fugitives, — are brought within the jurisdiction ; the case is to be
heard and decided upon proof; the certificate is not to be granted,
unless the judge shall be satisfied upon evidence that the party
is a fugitive owing service to the claimant. He acts, therefore,
in a judicial character, and exercises judicial functions.
JANUARY TERM, 1842.
35
[Prigg v. The Commonwealth of Pennsylvania.]
If, then, Congress possesses this legislative power, which has
been thus exercised, the nature of that power requires that it
should be exclusive. It can only be efficacious and adequate to
its object, by being exclusive. And if exclusive, either expressly,
or by undeniable implication, the settled principle is, that the
states are as absolutely prohibited from legislation as if they
were expressly forbidden to legislate. Sturgis v. Crowninshield,
4 Wheat. Rep. 122.
What is the nature of the power in this case ? What is the
object of this constitutional provision? It is to restore to the
slaveholding states, substantially, the right which the conven-
tional law of the colonies gave them. It is to confer upon them
an authority to reclaim and remove their fugitive slaves, with the
least possible inconvenience, expense, and delay. To be effectual
to this end, it is obvious that the mode of proceeding ought to be
uniform. And in order to its being uniform, the power to pre-
scribe that mode should be exclusively vested in one legislative
body. If there be a concurrent power of legislation in the states,
with a right to exercise that power, then it follows that the fugi-
tive could only be reclaimed according to the forms of state laws,
irrespective of the regulations prescribed by Congress. The con-
stitutional guaranty would thus become a sounding phrase, signi-
fying nothing. State legislation, upon such a subject, would
become the sport of prejudice. Different tribunals, forms of pro-
ceeding, and modes of proof, would be established in the different
states. And the pursuing owner would find it utterly impracti-
cable, ignorant of the particular state into which the fugitive had
escaped, to meet the requirements of the local law.
A still further difficulty would be inseparable from the exist-
ence of a concurrent power. State laws have no obligatory
force beyond state limits. A certificate of removal would carry
no authority beyond those limits ; and consequently it would
be necessary for the owner to make a new claim, offer new
proofs, and obtain a new certificate in every state through which
he might be compelled to pass to the state of his own residence.
The nature of the power, therefore, and the effect of its actual
exercise by the states, raise an implication sufficiently strong to
render it exclusive.
But admit it to be concurrent ; the principle is too firmly esta-
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
blished to admit of argument, that in a case of this kind, where
there is but one subject-matter of legislation, the concurrent
power of the states is wholly suspended by the action of the
federal power. The doctrine in Houston v. Moore, 5 Wheat.
Rep. 1, is this, that where once Congress has exercised its power
on a given subject, the state power over the same subject, which
has before been concurrent, is by that exercise absolutely prohi-
bited. In other words, wherever Congress exercises a concurrent
power, it is made in effect an exclusive power, over the particu-
lar subject-matter of the power. There are, it is true, cases of
concurrent powers on which both federal and state legislation
may act at the same time ; and where the latter is not suspended
by the action of the former. Thus the exercise of the taxing
power by Congress does not suspend the concurrent power of
the states. Because, although the same power, it is exercised on
different objects, or for different purposes. But where the power
acts on the same subject-matter, to accomplish the same end, as
in this case, the state power is necessarily suspended.
But if the principle thus adverted to, were not applicable to
this case, there is another which would be conclusive ; and that
is, that in the exercise of concurrent powers, if there be a conflict
between federal and state legislation, the latter must yield to the
constitutional supremacy of the former. It remains, then, only
to show that such a conflict exists in the present case ; and a
very cursory examination and comparison of the two laws will
be abundantly sufficient for the purpose. Thus, the act of Con-
gress authorizes the claimant to arrest the fugitive without a
warrant. The Pennsylvania law peremptorily requires one.
The act of Congress admits the oath of the owner or his agent,
as proof of the claim. The Pennsylvania law excludes both,
and requires the testimony of indifferent witnesses. The act of
Congress protects the claimant from all unnecessary delay and
expense. The Pennsylvania law authorizes delay upon the
suggestion of the fugitive; and burdens the claimant with the
incidental costs. The act of Congress imposes a penalty for
obstructing or hindering the claimant in the prosecution and en-
forcement of his rights. The Pennsylvania law gives him no
redress. In a word, the regulations which the two laws pre-
scribe, are in all essential respects variant from each other. The
JANUARY TERM, 1842.
37
[Prigg v. The Commonwealth of Pennsylvania.]
object of both may be the same, but the means of attaining it
are entirely different.
In conclusion then of the whole matter. The indictment
charges the offence of kidnapping under this state law. The
special verdict expressly finds, that the fugitive was a slave for
life, owing service and labour according to the laws of Maryland.
The judgment of the Court was against the party thus indicted.
It follows, that in the judgment of the Court, the offence of kid-
napping in Pennsylvania, may consist in seizing, and carrying out
of that state, an acknowledged slave, if the provisions of the state
law for his arrest and removal are not complied with. The spe-
cial verdict finds that fact, and the judgment of the Court is
founded on it.
The offence charged is not that the fugitive was removed
from the state of Pennsylvania, without complying with the
provisions of the act of Congress. Supposing that to be an
offence punishable by state authority ; which it clearly is not ; it
is not an offence provided for by this law ; nor according to the
tenth section would an exact compliance with the act of Congress
have been any protection to the party accused. The special ver-
dict expressly finds that the slave was carried out of the state,
without complying with the requirements of this law of Pennsyl-
vania. That is the gravamen of the charge. And, consequently,
if the state of Pennsylvania has no constitutional power to legis-
late at all upon the subject, the power being exclusively in Con-
gress ; or, if having originally a concurrent power, it has been
suspended by its actual exercise by Congress ; or if this state
legislation is found to be in conflict with the federal legislation
upon the same subject-matter ; if either of these propositions has
been successfully maintained, this judgment of conviction ought
to be reversed.
Mr. Hambly, for the defendant in error.
The final decision of a great constitutional question, should at
all times be regarded as a subject for grave consideration and
reflection ; inasmuch as it may affect the happiness and prospe-
rity, the lives or liberties of a whole nation.
Among the people of this free country, there is nothing which
should be guarded with more watchful jealousy, than the charter
D
3^
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
of their liberties ; which, being the fundamental law of the land,
in its judicial construction every one is immediately interested,
from the highest dignitary to the meanest subject of the common-
wealth. Any irreverential touch given to this ark of public
safety should be rebuked, and every violence chastened ; its sanc-
tity should be no less than that of the domestic altar ; its guardians
should be Argus-eyed ; and as the price of its purchase was blood,
its privileges and immunities should be maintained, even if this
price must be paid again.
In all the solemn constitutional questions which have been
adjudicated before this, the highest tribunal in the land, no one
has arisen of more commanding import, of wider scope in its
influence, or on which hung mightier results for good or ill to
this nation, than that which is now presented to the Court for
consideration. An all-absorbing subject is incidentally involved
in it — a subject, which is even now heaving the political tides of
the country, which has caused enthusiasm to throw her lighted
torch into the temples of religion, and the halls of science and
learning, whilst the forum of justice, and the village bar-room
have equally resounded with the discussion. Its influences have
been calculated by political economists; its consequences and
determinations by political prophets; until all, from the statesman
in the hall of legislation to the farmer at his fireside, are found
arrayed on one side or the other of this great question, so that,
whilst it has become " sore as a gangrene" in one region, it is the
football of the enthusiast in another.
Prigg having been convicted in the State Courts of a crime
which the statutes of Pennsylvania designate as " Kidnapping,"
the state of Maryland, of which he is a citizen, now raises the
objection that the laws of our state are unconstitutional ; and to
test this question we are this day here.
On the 25th of March, 1826, the General Assembly of Penn-
sylvania passed an act, the first section of which renders it a
felony to seduce or carry away any negro or mulatto from the
state of Pennsylvania, to make them slaves. Mr. Hambly cited
sections 2, 3, 4, 5, 6, 7, 8, 9, and 10 of the act of 1826.
All the provisions of this act of the General Assembly are
alleged to be unconstitutional; and the plaintiff in error says are
JANUARY TERM, 1842.
30
[Prigg v. The Commonwealth of Pennsylvania.]
in contravention of the act of Congress and the Constitution of the
United States.
The third paragraph of the second section of article 4th of the
Constitution, declares, "That no person held to service or labour
in one state, under the laws thereof, escaping into another, shall,
in consequence of any law or regulation therein, be discharged
from such service or labour, but shall be delivered up on claim
of the party to whom such service or labour may be due."
Under this section, some contend that the owner of a slave has
a right, without reference to the municipal regulations of the state
or territory where he happens to be, to seize and carry away any
alleged slave. That no legislation is necessary either by Congress
or the states ; that the clause is perfect in itself, and totally inde-
pendent ; and that the word " claim" means demand and sur-
render, without inquiry or investigation !
That if legislation be necessary, Congress has exclusively that
power, has already acted, exercising its power over the whole
matter, and therefore all state legislation is invalid.
The act of Congress was passed 12th of February, 1793; and
authorizes the arrest of a fugitive from labour, and taking him
before a judge of the Circuit or District Courts of the United
States, or before any magistrate of a city or town corporate, and
upon satisfactory proof, the judge or magistrate shall give a cer-
tificate which shall be sufficient warrant for the removal of the
fugitive.
The second section fixes a forfeiture of five hundred dollars on
any person who shall obstruct, hinder, rescue, or harbour such
fugitive, &c.
In the argument of this matter, it is asserted that no legislation
is needed ; that the constitutional provision is ample ; and that
under the phrase " shall be surrendered on claim," every thing
which legislation can give is already secured ; and that under this
clause a power is contained, in virtue of which, any one may step
into a crowd and seize and carry off an alleged slave, "just as he
would a stray horse," or any other article of personal property.
If this conclusion be correct, it is surely a strange deduction
from the language used in that clause, and in direct opposition to
what would seem to be impliedly its meaning.
If such be the true meaning of "claim," why does that clause
40
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
say, that no state by "any law or regulation therein," shall dis-
charge from service ? Why speak of " law or regulation," if
none be allowed? Why allude to that which is forbidden and
unlawful ? Why speak of state laws or state regulations, if the
states dare not pass any ? And why not at once use the language
which obviously presented itself, and say, that " escaping into
another state," shall not discharge from service or labour, without
adding a word about "laws or regulations?" The conclusion is
unsound, and altogether unwarranted. The language of the
Constitution not only presupposes legislation, but that this legis-
lation not only is to be, or may be, but will be by the states. It
was just as much as saying to the states: You may pass laws
upon the subject — you may make regulations — you may prescribe
the time and manner of seizure, the authorities before whom the
parties shall come for adjudication — but you shall not discharge
a bona fide fugitive from labour from that service which he owes
under the laws of the state from whence he fled. Your authori-
ties shall say whether under the laws of that state he owes ser-
vice, and if he do, you shall hand him over.
This construction is likewise contradicted by the fact, that,
not only the states but Congress, legislated upon the subject not
long after the formation of the Constitution, — Congress, as early
as 1793. It is, therefore, manifestly an argument which raises a
strong presumption against the position contended for ; that, at
that early day, when the framers of that instrument were almost
all ill full public life ; when the debates at its formation and upon
its adoption were still fresh in the memory of the whole country;
that Congress should have legislated upon this very point. Had
the public men of the day forgotten the meaning of this phrase ?
Could they forget that "claim" meant peremptory surrender — that
this was the meaning intended in the use of that word by the
framers of the Constitution, and should go to work to legislate,
where not only no legislation was necessary, but not at all allow-
able ? Such supposition will not be indulged a moment.
But, again : if they had intended that neither the states nor
Congress should legislate upon this subject, is it not altogether
certain that they would not have used the term "claim," but
would have selected other language better fitted to carry defi-
nitely the meaning which they intended to attach ? What is the
JANUARY TERM, 1842.
41
[Prigg v. The Commonwealth of Pennsylvania.]
meaning of " claim ?" "A challenge of ownership/' says Plow-
den. A challenge of interest in a thing which another hath in
possession, or at least out of the possession of the claimant.
" Claim" implies that the right is in dispute or in doubt. "Claim"
may be made by two or more at the same time. " Claim" has a
technical legal meaning; and those who drew this instrument,
being eminent lawyers and well versed in the use of language,
may possibly have designed so to point the meaning of the phrase,
and for that reason used that word.
This impression, too, is greatly strengthened by the recollection
that in the preceding clause respecting fugitives from justice, a
much stronger word is used. (i Shall be delivered up on demand,"
is the language used in reference to criminals ; but fugitives from
labour are to be delivered up "on claim." What now is the
difference between these two terms ? Why, evidently, " demand"
is peremptory. It will not admit of delay ; it insists upon imme-
diate obedience. " Claim" supposes debate, litigation, the deci-
sion of a right. How is it when one seeks satisfaction for an
offence ? I " demand" satisfaction : I require it immediately.
You shall give it me, or I will force it from you. His antagonist
sees by his language he is in earnest, and he must reply. But if
he should say, I "claim" satisfaction, debate springs up, negotia-
tion ensues, and the offence most likely takes another shape.
This word " demand," in fact, thrust itself upon the attention
of the framers of the Constitution. It was used in the preceding
paragraph in reference to criminals from justice, and is eminently
better fitted to express unconditional surrender than "claim" is.
But beside this, if the framers of this paper had designed such
a purpose as that imputed to them, would they not have omitted
from this clause the words " in consequence of any law or regu-
lation therein" — and the clause would then have stood in an
obvious shape; and every one would have understood that any
fugitive from labour, escaping into another state, should not
thereby be discharged from service, &c. This puts the matter, it
is considered, in a very clear and strong light ; and exceedingly
adverse to the construction that neither the Union nor the states
can legislate upon this subject.
Another reason which might here be noticed is, that no one,
either in the debates upon the formation of the Constitution, or
6 d 2
42
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
at its adoption by the states, ever asserted that to be the meaning
of this clause.
Mr. Hambly here referred to the debates in the Virginia con-
vention.
Another most valid and substantial reason against this con-
struction is, that it would be a violation of the very spirit of the
instrument.
If, under this term "claim" the stretch of power is so very
great that a man from a neighbouring state can venture into
Pennsylvania or Maryland, and upon his simple allegation seize,
and without reference to state authorities, carry off any one
whom he may choose to single out as his fugitive from labour,
it is a most unheard-of violation of the true spirit and meaning
of the whole of that instrument.
The same power that can, upon simple allegation, seize and
carry off a slave, can, on the allegation of service due, seize and
carry orf a free man. There is no power, if neither Congress
nor the states can legislate, to dispute the question with the
seizing party.
In non-slaveholding states the presumption is, that every man
is a free man until the contrary be proved. It is like every other
legal presumption, in favour of the right. Every man is pre-
sumed to be innocent until proved guilty. Every defendant
against whom an action of debt is brought, is presumed not to
owe until the debt be proved. Now, in a slaveholding state
colour always raises a presumption of slavery, which is directly
contrary to the presumption in a free or non-slaveholding state;
for in the latter, prima facie, every man is a free man. If,
then, under this most monstrous assumption of power, a free
man may be seized, where is our boasted freedom? What
says the fourth article of the amendments to the Constitution of
the United States ? " The right of the people to be secure in
their persons, houses, papers, and effects against unreasonable
searches and seizures, shall not be violated." Art. 5: "No person
shall be deprived of life, liberty, or property, without due process
of law."
But here we are met with the remark that "slaves are no par-
ties to the Constitution;" that "we, the people, " does not embrace
them. This is admitted, but we are not arguing the want of
JANUARY TERM, 1842.
43
[Prigg v. The Commonwealth of Pennsylvania.]
power to "claim" and take a slave, but to claim and take a free
man ! Admit the fact that he is a slave, and you admit away
the whole question. Pennsylvania says: Instead of preventing
you from taking your slaves, we are anxious that you should
have them ; they are a population we do not covet, and all our
legislation tends toward giving you every facility to get them:
but we do claim the right of legislating upon this subject so as
to bring you under legal restraint, which will prevent you from
taking a free man. If one can arrest and carry away a free
man "without due process of law;" if their persons are not in-
violate; your Constitution is a waxen tablet, a writing in the sand;
and instead of being, as is supposed, the freest country on earth,
this is the vilest despotism which can be imagined !
Is it possible this clause can have such a meaning? Can it be,
that a power so potent of mischief as this, could find no one of
all those who had laid it in the indictment against the king of
Great Britain, as one of the very chiefest of his crimes, " that he
had transported our citizens beyond seas for trial," whose jea-
lousy would not be aroused — whose fears would not be excited,
at a grasp of power so mighty as is claimed for this clause ?
Think you not that some one of those ardent, untiring, vigilant
guardians of liberty, would have raised a warning voice against
this danger ? And that, too, when only eighteen months after
the formation of this charter, although they had already in the
body of the instrument carefully guarded the writ of habeas
corpus, and provided for the trial of all crimes by jury and in the
state where committed, yet, as if their jealousy had been excited
to fourfold vigilance, in their amendments provided for the per-
sonal security of the subject from " unreasonable seizure," and
that no one should be " deprived of liberty without due process
of law."
Suppose, — by no means impossible case, — suppose a man to
be seized in the streets of Philadelphia simultaneously by a citi-
zen of South Carolina and a citizen of Virginia, each claiming
him as their slave : under the construction contended for, each
would be entitled to carry him off upon mere allegation ! He
offers satisfactory evidence to show that he is entirely free; but
the state authorities cannot interfere, because the states cannot
legislate and give them power; and Congress cannot legislate, and
44
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
if it did, could not give state officers judicial power. Martin v.
Hunter's Lessee, 1 Wheat. 304. What is to be done ? allow
these parties to wrangle it out in the streets, to settle the question
with dirk and bowie knife, or execute the judgment of Solomon?
No, the answer will be, hand them over to the District Court, and
there let them settle the right to property ! Yes, but there you
meet an unexpected difficulty. The District Court can try the
right of property as between the claimants, but not the right of
liberty as between them and the arrested free man ; therefore it
follows that because the party out of possession of the alleged
slave cannot prove his right to take him, the party in possession
retains him, and carries a free man into slavery. Possession of
a slave, in the absence of proof, is sufficient evidence of title.
2 Marsh. Rep. 609.
But in exercising the power of claim, and of excluding the
arrested party from testing the question of slave or free, do you
not violate the first clause of sec. 2, art. 4 ? " The citizens of
each state shall be entitled to all privileges and immunities of
citizens in the several states."
In some states they sell out, for jail fees, the personal services
of certain prisoners. Now, suppose such an one, not a negro, to
be seized in Pennsylvania, as an alleged fugitive from labour, —
and undoubtedly under this clause he may be seized, — but the
truth comes out that the party seized is not and never was a
prisoner, or sold out to service. Under this construction you can-
not try the question ; and a free citizen goes promptly and without
redress into slavery ! Ay, but let that be tried, say the advocates
of this doctrine, in the state to which he goes.
There are two answers to this remark : First, it is in direct
violation of the spirit of that provision in the Constitution which
requires trials to take place in the state where the infraction of
law occurred ; and secondly, what chance of fair trial would any
man under such circumstances have in the state to which lie is
1 taken, where all the presumptions are against him, where the
whole public opinion is against him, where he is entirely sepa-
rated from his witnesses, whilst the whole onus probandi is thrown
upon him. Better a thousand slaves escape, than that one free
man should be thus carried into remediless slavery !
It is true that Chancellor Walworth, in the case of Jack v.
JANUARY TERM, 1842.
45
[Prigg v. The Commonwealth of Pennsylvania.]
Martin, in 14 Wendel, says that the right of recaption existed at
common law, and " is guarantied by the Constitution." Now,
with the greatest deference for the opinion of the learned judge,
we are not convinced that the right of recaption of persons ever
existed here, or if it did exist, it is taken away by the amend-
ments to the Constitution. The open avowed ground is taken, that
in a free state every man is prima facie a free man who is at large.
If so, he comes under that class called "people;" and the right
of " the people" to be secure in their persons against unreasona-
ble seizures is guarantied by the Constitution. Ay ! but he is a
slave, say the opponents of this doctrine. But that is not admitted.
The very question at issue is, slave or free. Now, so long as he
is not proved a slave, he is presumed free ; and, therefore, if you
seize him, it is a violation of this constitutional privilege.
But, it is said, if this be not the true construction of this clause,
and legislation be necessary, that the right appertains alone to
Congress; and that the act of 1793 covers the ground, and leaves
no room for the action of state legislation.
That no power to legislate upon this subject is expressly granted
" in terms" to Congress must be at once conceded. It must like-
wise be as readily conceded that it is not " prohibited" to the
states. Then, if Congress possesses this power, it must be in vir-
tue of a concurrent authority of acting upon the subject-matter;
or because this is a faculty which is necessary to the exercise of
some power already granted.
That it is not the latter, is manifest ; for the most laborious
investigation and the most careful search, aided by the most
critical powers of mind, can show no single provision of the
instrument to the exercise of which this legislative power would
be necessary.
There are two kinds of concurrent powers embraced by the
Constitution :
1. Those which both bodies may lawfully legislate upon ; and,
2. Those which the states may legislate upon until Congress
acts; when the latter, being the supreme power, excludes the
former.
As an instance of the former, the regulation of the militia may
be cited. Congress can "organize, arm, discipline, and govern,"
whilst to the states is reserved the right of appointing officers and
46
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
the authority of training. Art. 1, sec. S, clause 16 ; Houston v.
Moore, 5 Wheat. 24.
An illustration of the latter class may be found in the power
to establish bankrupt laws; on which, it has been decided by this
Court, that the states might legislate until Congress did, when the
acts of the former would cease and expire. Sturgis v. Crownin-
shield, 4 Wheat. 193.
In order, therefore, to ascertain whether this power of legisla-
tion be concurrent or not, we must inquire :
1st. Whether it were possessed by the states previous to the
formation of the Constitution, and appertained to sovereignty.
2d. Whether granted in express terms to the Union, or prohibited
to the states. 3d. Whether it be an exertion of sovereign power
by operating beyond the state territory ; or, 4th. As necessarily
originating in the Union, so that no exercise of it by the states
can take place, without clear, open, and undisguised conflict with
the Constitution.
Now let us test this question by these rules. It is manifest that
slaves and slavery were the subjects of legislative power by the
states, before the Union. After the declaration of independence
in 1776, each state, at least before the confederation, was a sove-
reign, independent body. Each had the right to enact laws which
no other power could revise. Each could make war or conclude
peace, without reference to the other. Each could raise armies
or maintain a navy, without consulting the others; and, in
fine, possessed every faculty of sovereign power, as effectually
and entirely as either France or England or any of the king-
doms of the Old World, and equally as untrammelled. Then,
this being the case, the union was formed, by taking away from
the individual states portions of power, and vesting them in one
central body, known as "the Union," in the formation of which
were admitted maxims : 1st. That it possessed nothing by impli-
cation, except what was absolutely necessary to its existence; and,
2d. That powers not delegated to the Union, nor prohibited to
the states in express terms, were reserved. Article 9 and 10 of
Amendments.
South Carolina, as early as 1695, passed laws upon the subject
of slaves and slavery, and so down to the present time. So
also Connecticut, in 1711, and Maryland, in 1715. These, then,
JANUARY TERM, 1842.
47
[Prigg v. The Commonwealth of Pennsylvania.]
are sufficient, as instances of the exercise of this power by the
states, long before the Constitution was formed ; and this proves
the first position, — That it was possessed by the states previous
to the formation of the Constitution. And it will not be contro-
verted that the power is not "expressly" granted to the Union,
nor prohibited to the states.
Thirdly, The exercise of this power by the states is merely a
matter of police and internal regulation; and therefore does not
operate beyond the state territory : and,
Lastly, the power does not originate in the Union — that is, the
right of legislation does not grow out of the Union ; the power
itself, the subject matter, is not the birth of the Union ; nor is its
exercise a "clear, open, undisguised conflict with the Constitu-
tion," as the exercise of extra-territorial power would be.
It is inferred, then, from all this, that this power is not a con-
current one ; that for want of express reservation of such right,
it has not the features which enable it to be exercised at the same
time by both parties, as is the case with the militia laws. Nor
can the action of Congress absorb it and drive the states from it,
as is the case with the bankrupt laws. It is a power which exists,
and can only exist in the states. Nor is it any answer to all this,
to say, that a variety of laws and regulations will be passed by
different states ; that the legislation will be incongruous and dis-
similar. We must take the Constitution as we find it ! Our
duty is to construe, not to legislate ! And we are told by good
authority that in the construction of constitutions, the argumentum
ab inconvenienti, will not answer ; we dare not use it. The ita
scripta rule, is enough for us. If the constitutional provision be
defective, there is a constitutional mode to amend it : let us then
rather apply to that, than violently wrest the instrument by con-
struction.
It is urged, however, that the passage of the act of Congress
of 1793 affords a very strong argument in favour of congressional
action upon this subject ; that the fact of its passage at so early
a day evinces the understanding of that clause of the Constitu-
tion to have been, amongst the framers of it, that Congress alone
had the right to legislate ; and hence, by implication, as it were,
they would convince us, that it was one of those concurrent
48
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
powers which the action of the highest legislative body absorbs
and takes away from the states.
This argument, if it prove any thing, will prove too much.
The act of Congress authorizes the arrest of the fugitive, and
requires him to be taken before any judge of the District or Cir-
cuit Court, or before any magistrate of a comity, city, or town
corporate.
Now, it is a principle perfectly settled by judicial decision, that
Congress cannot communicate the exercise of judicial power to
any person who does not hold the commission of the general
government. Martin v. Hunter's Lessee, 1 Wheat. 330: "Con-
gress cannot vest any portion of the judicial power of the United
States except in Courts ordained and established by itself.'"
Cons, sec, 3, art. 2 : "The President shall commission all officers."
Now, if no man can be an officer of this government without
bearing the commission of the President, certainly no "magistrate
of a county, city, or town corporate" can be a judicial officer of
the general government, and so cannot take authority under the
act. This principle is necessarily derived from art. 3, sec. 1,
which provides "that the judicial power of the United States
shall be vested in one Supreme Court, and in such inferior Courts
as Congress shall from time to time ordain and establish;" and
of course the persons holding this power must be commissioned
by the power which establishes the Courts. This doctrine has
long been held by both the Supreme and State Courts. United
States v. Lathrop, 17 Johns. 4 ; Ely v. Peck, 7 Conn. R. 239. The
former was a case in which an action of debt was brought for a
penalty under the act of 1813, for selling spirituous liquors, and
gave the State Courts jurisdiction. The last case was an action
against a deserting mariner, in which the State Court had juris-
diction given it by an act of Congress; but the judges in both cases
declined exercising it. 1 Kent's Corn. 402, 403.
This, then, being the case, that the act of Congress of 1793 gave
to " magistrates of a county" an authority which it could not
give, the conclusion is irresistible, that they did not at that day
understand in the legislative hall, the construction of the Consti-
tution, as well as we do now, after an interval of half a century;
and therefore the argument above cited is of no avail, inasmuch
as it explodes itself. Besides which, we might add, that the states
JANUARY TERM, 1842.
49
[Prigg v. The Commonwealth of Pennsylvania.]
have claimed the power just as openly and avowedly as Congress
has done.
It is supposed, however, that the weight of judicial authority
from the State Courts, is in favour, very decidedly, of the exercise
of this power by the national legislature. Let us therefore
examine.
In 5 Serg. and Rawle, 62, is contained the case of Wright v.
Deacon. This was a writ de homine replegiando. The case had
already been tried on habeas corpus, and adjudicated against the
party, and upon that point decided; whilst it was taken for
granted that the Constitution and act of Congress gave warrant
for his removal. The question was not agitated as to the consti-
tutionality of the law of Congress, or that of Pennsylvania ; and
the case therefore gives no authority for this construction.
Commonwealth v. Griffith, 2 Pick. 11, was an indictment for
an assault and battery upon a negro, and the defence made
was that he was a slave, and had fled from servitude. The
Court say, " This brings the case to a single point, viz. : whether
the statute of the United States is constitutional or not. The
Constitution, say they, does not prescribe the mode of reclaiming
a slave, but leaves it to be determined by Congress."
Here is taken for granted that which is far from appearing.
One leap reaches the conclusion ; without showing how Congress
attains this power, whether expressly, by implication, or how.
In fact, one of the judges dissents, saying that he thought the
fugitive should be seized in conformity to state laws. Further, the
unconstitutionality of the law was not attacked on the ground that
Congress had no right to legislate at all ; but merely because in
conflict with other parts of the instrument. This case, therefore,
it is respectfully conceived, proves nothing for the plaintiff in error.
In 12 Wend. 314, is found the case of Jack v. Martin. This
was a writ de homine replegiando; and Judge Nelson in the
Court below decided that the legislative power was concurrent,
and therefore the action of Congress exoluded the states from
legislating, and that the object being palpable — i. e., to secure
the slaves of the south — it should have a construction that would
operate most effectually to attain the end.
We contend that we are giving that construction to this clause
most likely to produce the desired end. If excited argument and
7 E
50
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
an interested withdrawal of the whole subject-matter from the
hands of the states conld be effected by the south, will it not pro-
duce constriction and collapse with the free states? Which is most
likely to keep the peace? A tone of confidence and conciliation,
or of defiance and the attempted exercise of illegal power?
We must negotiate and legislate upon this and every other sub-
ject with the calumet of peace, rather than the tomahawk; with
the conciliatory spirit of a band of brothers, instead of the animo-
sity of deadly foes.
The case of Jack was taken up before the Court of Errors and
Appeals, and the decision below sustained — not the question of
constitutionality, but the question of fugitive or not, because
Jack had admitted he was a slave by his pleas. But the question
of constitutionality was debated, and in my judgment not a single
solid reason was given for that construction, but, on the contrary,
Chancellor Walworth says, " I have looked in vain among the
delegated powers of Congress for authority to legislate upon the
subject," and concludes that state legislation is ample for the
purpose.
Now, then, upon recapitulating these cases, what have we ?
1. We have one case where the constitutionality of the law is
taken for granted, by Chief Justice Tilghman.
2. We have the argument of Judge Nelson and Senator Bishop,
in favour of it, and the case in Pickering ; and —
3. We have the decisive opinion of Chancellor Walworth, and
the dissenting judge in the case in Pickering.
For neither in Ex parte Symmons, tried by Judge Washington,
and reported in 4 Wash. C. C. Rep. 396, nor in the case of John-
son v. Tompkins, 1 Baldw. Rep., was the question of constitu-
tionality at all mooted or spoken of, but both judges speak in the
same breath of state laws and laws of Congress; without once
impugning the right of either party to legislate, or for one mo-
ment intimating a doubt as to the constitutional right of either
party to pass them.
It may, however, be contended that this authority to legislate
is given to Congress by the 18th clause of sec. 8, art. 1, of the
Constitution : "And to make all laws which shall be necessary
and proper for carrying into execution the foregoing powers and
all other powers vested by this Constitution in the govern-
JANUARY TERM, 1842.
51
[Prigg v. The Commonwealth of Pennsylvania.]
merit of the United States or in any department or officer
thereof."
Judge Story says, in his Commentary, sec. 1238 : " The plain
import of this clause is, that Congress shall have all the incidental
and instrumental powers necessary and proper to carry into exe-
cution all the express powers. It neither enlarges any power
specifically granted, nor is it a grant of any new power to Con-
gress."
This case, then, is not embraced by the first part of the section,
because it is not one of the " foregoing" enumerated powers.
Nor is it included under the other term, "all other powers vested,"
because there is no power vested, for the learned commentator
just alluded to, says it means express powers.
Speaking of the Constitution, we are told in Hunter's Lessee
ad. Martin, 1 Wheat. 326, the government of the United States
can claim no powers which are not granted to it by the Constitu-
tion, and the powers actually granted, must be such as are ex-
pressly given or given by necessary implication. On the other
hand, this instrument is to have a reasonable construction, accord-
ing to the import of its terms. The words are to be taken in their
natural and obvious sense; not in a sense unreasonably restricted
or enlarged.
Certainly, then, this phrase, "powers vested," means express
powers ; any other mode of construction would do violence to the
whole instrument, and overturn a whole series of decisions. If
then it means express power, there is none such in this case; and
therefore, under this clause, Congress cannot exercise the authority
claimed. 1 Kent's Com. 388, 90. " The correct principle is, that
whenever the terms in which the power was granted to Congress,
or the nature of the power required that it should be exclusively
exercised by Congress, the subject was as completely taken away
from the state legislature as if they had been expressly forbidden
to act on it." But is that the case here? — the power is not
granted in terms at all, and the nature of the power is such, that
the states can as easily and usefully exercise it as Congress.
The truth is, the power is one of police and internal regulation,
as much as ferries, turnpikes, and health-laws; and in Gibbons v.
Ogden, 203, we are told that "no direct power is granted over
these objects to Congress, and consequently they remain subject
52
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
to state legislation. If the legislative power of the Union can
reach them, it must be for national purposes."
How can legislation respecting slaves become national when
only a part of the states hold them? Such legislation cannot as-
sume a national aspect, or attain a " national purpose."
If then this power be not expressly in Congress, nor concur-
rently, nor necessarily appurtenant to any other power, what is
the meaning of this clause ?
" No person held to service or labour in any state, under the
laws thereof, escaping into another, shall in consequence of any
law or regulation therein, be discharged from such service, but
shall be delivered up, on claim of the party to whom such ser-
vice or labour is due."
It simply means this — nothing more nor less: You may legis-
late— you may regulate — but this one point alone you shall not
touch : — You shall not discharge the fugitive from service, if he
were a slave by the law of the state from whence he fled.
The result is, that no power being given to Congress to legis-
late, it is reserved to the states under the 10th article of the
amendments.
" The powers not delegated to the United States by the Consti-
tution, nor prohibited by it to the states, are reserved." Federalist,
No. 32. The state governments clearly retain all the rights of
sovereignty which they had before the adoption of the Constitu-
tion, and which were not by that Constitution exclusively dele-
gated to the Union. 1 Wheat. 325.
Suppose art. 4, sec. 1, is read thus: — "Full faith and credit
shall be given in each state to the public acts, records, and judicial
proceedings of every other state:" — and then stopped. Is it not
apparent, that the states could by law regulate the kind and
quantum of proof, the manner in which their Courts should receive
it ; and if it was thought they could not, why in express terms
reserve to Congress " the right to prescribe the manner in which
they shall be proved, and the effect thereof."
Under art. 1, sec. 4, clause 1, the times, places, and manner
of holding elections for senators and representatives shall be pre-
scribed by the state legislatures; but the framers of the Constitu-
tion cautiously add, that Congress may make or alter such regula-
tion, except as to place.
JANUARY TERM, 1842.
53
[Prigg v. The Commonwealth of Pennsylvania.]
Art. 1, sec. 8, clause 5, the power to coin money, one of the
highest attributes of sovereign power, is expressly given to Con-
gress; and yet, in section 10, clause 1 of art. 1, the states are
cautiously and expressly prohibited from coining money. This
has always been the highest mark of sovereign power.
It is, however, supposed by some, that because Congress has
legislated on the surrender of criminals, that therefore there is
stronger ground for claiming the right of legislating here.
Mr. Hambly cited the Madison Papers and Debates in Conven-
tion, that this matter was expected to be left to state legislation ;
and that the south was not united itself upon the subject. Madi-
son Papers, p. 1447.
As if, however, to remove all doubt upon this subject, we have,
in the Constitution itself, an open admission that the whole sub-
ject of slaves and slavery was left in the hands of the states.
Art. 1, sec. 9: "The migration or importation of such persons
as any of the states now existing shall think proper to admit,
shall not be prohibited by Congress prior to 1808."
Now what is the meaning of this ? Why, that Congress shall
leave the slave-trade, and all its operations, to state legislation
entirely, with the exception that after 180S they may stop it if
they choose ; but if they do not choose, it will always remain in
the hands of the states, until they do see fit to close it. This, to
my mind, without any other consideration, is sufficiently con-
vincing that every body at that day rightly understood this whole
matter to be the subject of state legislation.
The use of the terms "legally" and "justly," in the formation
of the Constitution, shows that the right was to be ascertained by
competent authority, not taken for granted ; and that legislative
power somewhere was to exercise itself upon the matter, and by
none more probably than the same power which then had it in
control, — the state legislatures.
It now only remains to examine two arguments urged on be-
half of the plaintiff in error.
It is alleged that the judiciary act of 1789 vests in the Courts
of the United States the whole judicial power of the government ;
and that this being judicial power, which is sought to be attached
to the general government, it is impliedly embraced by that act
e 2
54
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
One word will be a sufficient answer to that argument. The
power asked, or rather claimed, is not judicial, but legislative ; and
therefore can by no possibility be claimed by, through, or under,
the judiciary act.
Another argument is, that legislative construction has, with
this Court, almost the authority of judicial decision. And be-
cause Congress has, in its reports upon ' slavery, admitted or
asserted this right, their claim therefore should be regarded almost
as a judicial construction.
It is answered, that if there be any one thing in this country
entirely loose, uncertain, and vascillating, it is legislation ; and
whenever the judicial exposition of our highest Courts becomes
so wavering and uncertain as to bear comparison with our legis-
lation, we shall truly be the pity and contempt of all civilized
nations.
It has been shown :
1. That "claim" does not mean peremptory demand and un-
conditional surrender. 2. That legislation is contemplated by
the language of the clause ; and that both Congress and the states
have legislated. 3. That this construction was never asserted by
the framers of the Constitution. 4. That it would violate its
spirit. 5. That the power of recaption of persons never existed,
or if it did, is restrained by the amendments. 6. That this power
is neither expressly granted to Congress nor prohibited to the
states ; nor is it necessary to the exercise of any granted power,
nor impliedly reserved. 7. That the states possessed this power
before the Constitution was formed. 8. That it is a mere regu-
lation of police, and does not suppose the exercise of national
power ; and, 9. That the Constitution, in art. 1, sec. 9, gives, or
rather leaves the whole subject in the hands of the states, where
it originally found it.
Mr. Johnson, attorney-general of Pennsylvania, stated that he ap-
peared before the Court in obedience to the directions of the act of
Assembly, passed in 1839, to which reference had been made, to
maintain the constitutional authority of Pennsylvania to enact the
several laws set out in the paper-book in the hands of the Court ;
and constituting the groundwork of the indictment and proceed-
ings in the present case. He said he occupied a position of great
JANUARY TERM, 1842.
55
[Prigg v. The Commonwealth of Pennsylvania.]
delicacy and embarrassment : He stood before the Court not only
as the counsel, but as the official representative of the Common-
wealth of Pennsylvania ; and was, as such, bound by an oath as
solemn as that taken by their honours, to support the Constitution
of the United States. It was made his duty to vindicate the
right of Pennsylvania to adopt the laws in question against the
allegation of the learned gentlemen, who so ably represented the
interests of Maryland, that they conflicted with the Constitution
and laws of the general government. In performing this duty,
he felt the responsibility to be almost as binding as if he were
pronouncing a judicial decision, to advance no doctrines that
were, in his judgment, incompatible with the true construction of
the federal Constitution.
It was gratifying to him to be able to assure the Court, that his
official duty and his own conscientious convictions of right, as a
citizen of the Union, were in perfect harmony on this subject.
He should not hesitate to speak in earnest, for he spoke with sin-
cerity. He desired to place Pennsylvania rectus in curiae, on her
proper footing, before the Court. She came there voluntarily. She
was not dragged sullenly to that high bar, denying the jurisdic-
tion of the Court and disclaiming its authority. This proceeding
was one of amity, of concord, on the part of Pennsylvania and
of Maryland, which were, as the learned counsel had told the
Court, the real and substantial parties. They came into that
Court to try a great question of constitutional law, to terminate
disputes and contentions which were arising, and had for years
arisen along the border line between them, on this subject of the
escape and delivery up of fugitive slaves. Neither party sought
the defeat or humiliation of the other. It was for the triumph
of law they presented themselves before the Court. They were
engaged under an imperative sense of duty in the work of peace ;
and he hoped he would be pardoned if he added, of patriotism also.
The difficulties which resulted in the* present case had beeii
previously felt, and made the subject of negotiation between
these states. And it was a curious fact, that this very act of
25th March, 1826, the unconstitutionality of which is alleged in
this case, was the joint fruit of such negotiation. It was passed,
as he believed, at the instance and with the entire approval of
commissioners appointed by the constituted authorities of the stat< ■
56
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
of Maryland, to wait upon the legislature of Pennsylvania to
obtain the passage of some law of the kind. At the time of its
passage it was loudly condemned by that portion of the citizens
of Pennsylvania who favoured the abolition of slavery. And
now, a singular change of places is exhibited — the state of Mary-
land repudiates what she then sanctioned — and the adversaries
of slavery sustain, though not very cordially, what they then
condemned. One of these parties thinks this act of 1S26 is too
indulgent to slaveholders ; the other, that it deprives them of their
just rights. The considerate and enlightened citizens of Pennsyl-
vania, with few, if any, exceptions, were, he believed, of the
opinion that this law was precisely what it should be — alike war-
ranted by the federal Constitution, and careful to protect the
rights of all. As such, it would be his duty, as it was his plea-
sure, to maintain it against every assault upon its constitutionality,
let it proceed from whatever source it may.
By the act of 1780, Pennsylvania began the great work of phi-
lanthropy in regard to her slaves. She has pursued the policy
there indicated, until slavery, with only here and there a time-
stricken relic of former policy, has vanished from the soil. She
did not trench on the rights of other states. She did not impugn
the principles, or the conduct of their citizens ; deeply as she ab-
horred slavery herself. She performed her own duty, and left to
others the glory or the shame of performing, or of neglecting
theirs. In this act of 1780, there is a saving of the rights of slave-
holders in other states. So in the act of 1S26. Its very title
speaks its object. It is " An act to give effect to the provisions
of the Constitution of the United States, relative to fugitives from
labour, for the protection of free people of colour, and to prevent
kidnapping." Thus is this very unconstitutional act found to be
an act to give effect to the Constitution. The history of the legis-
lation of Pennsylvania on this subject will prove, that though she
has been ever found in the vanguard of the friends of liberty and
humanity, she never has forgotten what is due to her sister
states ; she never has wavered in her loyalty to the Constitution
of the Union ; and come what may, she never will depart from
this course.
That Pennsylvania had the right then, to enact the law in
question, she solemnly avers to have been accorded to her by
JANUARY TERM, 1842. 57
[Prigg v. The Commonwealth of Pennsylvania.]
the state of Maryland herself. She will not consent to surrender
it, until this Court, by its decision, strips her of that valued attri-
bute of sovereignty. None will deny, that the main questions
involved in this case are delicate, in some respects intricate, and
in any point of view important to all sections of the Union. Sub-
stantially they are these :
1. Is the power of prescribing the mode of delivering up fugi-
tives from service or labour, under the 2d section of the 4th article
of the Constitution, exclusively vested in the general govern-
ment ?
2. If it is not, is it concurrently vested in the state and general
governments, to be exercised on particular terms ? or is it solely
vested in the state governments?
3. Have the states the right to inflict penalties, as in cases of
crimes, upon those who seize and remove fugitive slaves out of
their territories, without pursuing the mode prescribed, either by
the act of Congress of 1793, or by the acts passed on the same
subject, by the states themselves ?
The last of these three questions is the most material in the
present case : perhaps it is the only real question in this case, upon
which the Court is imperatively called upon to pronounce its
judgment.
It is to be extremely regretted that we have no judicial guides
to aid us in the argument of this cause, which are of higher
authority than the mere opinions of individual judges, who have
incidently, often hastily expressed them. The cases, such as they
are, unfortunately are few, conflicting, and contradictory. They
have, it is true, all occurred in states where slavery has been
abolished, for such questions must rarely indeed happen, in states
where slavery exists. It is obviously the interest of all parties in
such states, to determine the question in one way. Without pre-
tending to trouble the Court with a detailed and critical examina-
tion of the following cases, he would refer to them as exhibiting
a most striking illustration of the "uncertainty of the law."
Deacon's Case, 5 Serg. & Rawle, 62 ; Johnson v. Tompkins,
1 Baldwin, 571 ; Com. v. Holloway, 2 Serg. & Rawle, 306 ; S. C,
3 Serg. & Rawle, 4 ; Com. v. Griffiths, 2 Pick. 18 ; Jack v. Martin,
12 Wend. 312 ; S. C, 14 Wend. 510. In the cases in the New York
and Massachusetts reports, the Courts were divided in opinion. In
8
58
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
the cases in the Pennsylvania reports, the question did not properly
arise, and the Court, without examination, declared its opinion
on the constitutionality of the act of Congress of 1793. This sub-
ject has been incidentally noticed in a few other instances, but
not in such a manner as to be deemed essential.
The questions are thus perfectly open and free from all embar-
rassment on the score of authority. Decisions of this Court on
other provisions of the Constitution will supply us with useful
analogies; but we are thrown back on the elementary principles
of the Constitution itself for the foundation of the present argu-
ment. Let us then recur to these principles, as the source of the
power we are in quest of, and trace it up to its fountain-head.
The times call for a full and frank exposition of this subject;
and he rejoiced that it had been presented at this juncture, before
this tribunal, and in the friendly spirit that actuated the parties
now at the bar. He begged leave to make one further prelimi-
nary suggestion, before he opened the Constitution. It was this ;
that the state and national governments were too often viewed
as hostile and repugnant to each other in their relations. Powers
granted to one, were regarded as if withdrawn from the other; and
it seemed to be the effort of some, who were called upon to judge
between them, to treat them as if they mutually approached each
other as belligerents, with swords drawn. This was not his opinion,
nor would it be his course. He thought, witli the fathers of the
republic, that both were essential to each other ; both formed one
consistent, harmonious, beautiful system of government — complete
when united — imperfect when divided : combined, stronger than
links of iron ; dissevered, weaker than a rope of sand. It would
be his purpose, therefore, to contend for such a construction of the
federal Constitution as would place the state and national govern-
ments, on this solid and impregnable basis.
1. In regard to the first question he had suggested, he would
proceed to read and comment on the second section of the fourth
article of the Constitution, which was in these words, " No person
held to service or labour in one state under the laws thereof,
escaping into another, shall, in consequence of any law or regula-
tion therein, be discharged from such service or labour, but shall
be delivered up on claim of the party to whom such service or
labour may be due." This provision certainly gives no authority
JANUARY TERM, 1842.
59
[Prigg v. The Commonwealth of Pennsylvania.]
to the general government in terms ; none even by implication.
It simply enjoins a duty on the states, and prohibits them from
passing laws or regulations liberating fugitive slaves. It recog-
nises the general right to legislate on this subject, for it restricts
its exercise in a particular manner. If they could not legislate at
all, it was futile and absurd to say they should not pass laws of a
particular description. But it enjoins that the fugitives shall be
" delivered up" " on claim." This duty is made incumbent on
the states, without prescribing the exact mode of its performance.
The agency of the general government is in nowise concerned or
invoked. The obligation is on the states, and for the states ; their
power is left perfectly free and untrammeled, with this single
restriction — that they cannot discharge the fugitives from the
claim of their masters or owners. The authority vested in the
states, is in the nature of a negative pregnant ; it denies and
admits — denies the particular power of liberating fugitives, and
admits the general power to prescribe how they shall be delivered
up. Should the states transcend their authority by enacting laws
impairing the right of the slaveholder, the remedy is by judicial
instrumentality. It is here. This Court will pronounce the acts
unconstitutional and void. But this power of the general govern-
ment is preventive — not active. It is solely the right to restrain,
not the right to compel. There are various restrictive clauses in
the federal Constitution ; but no one ever supposed, that a pro-
hibition of legislation upon the states gave the positive right to
Congress to legislate ; much less can it be pretended, that a pro-
hibition of a particular species of legislation divested the states
of all general authority on the subject, and transferred the right
to the national government. This construction of the powers of
the general government would annihilate the state sovereignties
at a blow. See on this subject of the general powers of the
federal government, the letters of the Federalist, Nos. 41, 42, and
43 ; but especially 42. In this letter, the subject of the 4th article
of the Constitution is distinctly and elaborately considered. Every
line, and every word, is noticed ; but this very identical provision,
in regard to fugitive slaves, is entirely omitted. Had it at that
day been supposed to have conferred any power on the general
government, could it thus have been passed silently by ? Does
the tremendous power arrogated for the national government, in
60
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
this case, lurk in this provision, without having been discovered
by the keen eyes of Hamilton, Madison, or Jay ? These letters
of the Federalist, were written before the adoption of the Consti-
tution. They were read by almost every one. The comments
were identified with the letter of the Constitution itself. They
have been always treated as a contemporary exposition, by the
first judicial intellects of the age, sanctioned by popular adoption,-
and he felt persuaded the Court would pause, before it construed
into the Constitution, powers, which these great men never
dreamed of ascribing to the general government.
The reason for introducing this provision into the Constitution,
is itself the best exponent of its meaning. Prior to the adop-
tion of the Constitution, slavery, absolutely, or in a modified form,
existed in all the states except perhaps in Massachusetts. The
right of the master to pursue and recapture fugitive slaves then
existed by mutual comity. Few, if any, free negroes could be
found. The presumption was that all negroes were slaves. No
general regulation was necessary; for it was the interest of all
the states, to countenance and aid the master in the recapture
of his runaway slave. But symptoms of repugnancy to slavery
began to be manifested in Pennsylvania and other states ; and
the southern states were apprehensive that it might at some
future day interfere with the recovery of their property. They
desired a guarantee from the general government; not that that
government should provide for the redelivery of their fugitive
slaves, but that the Constitution of the Union should prohibit the
states from passing laws declaring them to be free. The pro-
vision of the Constitution under consideration furnishes this gua-
rantee ; it never was intended for more. See 2 Elliot's Debates,
335, 336 ; Mr. Madison's and Governor Randolph's speeches in
the Virginia convention. Had the southern states demanded
more than this simple guarantee; had they required that the right
of the states to prescribe the mode of surrendering up fugitive
slaves should be yielded to Congress exclusively; we know not
but it might have jeoparded the formation of the Union itself.
It is well known the word " slave" is not found in the Constitu-
tion. That it was excluded on account of the scruples of certain
of the northern members of the convention; and had these mem-
bers been told that they were depriving the states they represented.
JANUARY TERM, 1842.
61
[Prigg v. The Commonwealth of Pennsylvania.]
of the power of directing the mode in which fugitive slaves were
to be redelivered to their masters, who can doubt that they would
have rejected with indignation any instrument of government,
containing such a surrender of state sovereignty as this?
The Constitution does not aim at any abridgment of the state
sovereignties on this subject, except in the single point of pro-
hibiting them from setting fugitive slaves at liberty. In all other
essential particulars, it wisely leaves them to the exercise of their
own judgment. Different rules on this subject would naturally
be established in different states. Less strictness of proof of the
right of the master would be satisfactory in a slave state, than
would be so in a free state. Some respect is due to the common
feelings, or even prejudices of a community, in the enforcement
of claims deemed odious in principle to any considerable number
of the people. If even compatible with justice, they should not be
pressed in a manner to outrage or wound the sympathies of those
on whom the demand is made. To abhor slavery, in principle,
is no great offence in a country where liberty is the boast and the
birthright of every creature wearing the image of his Maker.
The states are the best judges of that mode of delivering up
fugitive slaves, which will be most acceptable to their citizens. It
is evident that no general law can suit the spirit of the people in
all; and the only rational mode of providing for the evil, is that
provided by the framers of the Constitution — by committing it to
the wisdom and patriotism of the states themselves. The ten-
dency of this course of reasoning is, not only to prove that the
general government has not exclusive, but that it has no jurisdic-
tion over this subject whatever. To remove all possibility of
difficulty, however, he would proceed to consider the nature of its
exclusive powers with some minuteness, but great brevity.
On every principle of rational construction, recognised by
common sense and by judicial decisions, exclusive authority on
any given subject was vested in the national government in
only three cases.
1. When the power is expressly granted.
2. When the power is vested in the general government, and
prohibited, to the states.
3. When the exercise of a power by the states would be con-
F
S2
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
tradictory and repugnant to the exercise of a rightful power by
the general government. See the Federalist, No. 32; Sturgis v.
Crowninshield, 4 Wheat. 122; Gibbons v. Ogden, 9 Wheat. 1.
Under which of these classes of exclusive powers, can such
power be inferred in this case ? Not under the first, for, as has
been already shown, no such power is given. Not under the
second, for no power is vested in the general government, or
prohibited to the states, in the section now before the Court,
which has been violated. Not under the third, for the general
government neither possesses, nor has exercised any power, to
which the exercise of the power of enacting the law in question
by Pennsylvania, is either contradictory or repugnant. The sup-
posed incompatibility, arising from the nature of the power to be
exerted, cannot render it exclusive in the national government;
for the very foundation of the argument is wanting, the existence
of the power at all.
2. Taking it, then, as established by the argument, that exclu-
sive authority to legislate on this subject is not vested in the
general government, is it vested in the respective states concur-
rently, and co-operatively with it, or solely, and independently
of all control on the part of Congress? Anterior to the adoption
of the Constitution, the power of prescribing the mode of sur-
rendering up fugitive slaves, clearly belonged to the states alone.
It is not taken away by that instrument ; it is not inconsistent
with any of the powers vested in Congress or the general go-
vernment; it is one of the most necessary attributes of sovereignty
recognised and sanctioned by every principle of national law.
It belongs to them still. No rightful power exists to divest it.
The Constitution forbids it ; and the Constitution only can strip
them of this power. See 4 Wheat. 122 ; 5 Wheat. 1 ; 2 Dallas,
291 ; 3 Dallas, 386 ; 2 Wheat. 259 ; 3 Wash. C. C. R. 316, 322.
The tenth article of the amendments of the Constitution settles
this part of the case beyond all cavil or controversy. There let
it rest. Whatever may be the power exercised by Congress, the
states at least cannot be deprived of the power that belongs to
them under the Constitution.
The act of Congress of the 12th February, 1793, on this sub-
ject, is supposed to have been a constitutional exercise of power.
Passed so recently after (he adoption of the Constitution, and
JANUARY TERM, 1842.
63
[Prigg v. The Commonwealth of Pennsylvania.]
by men intimately associated with that event, it has hardly ever
been subjected to the test of examination, it has been taken for
granted, and acted upon without question. But even great names
cannot sanctify wrong ; time cannot supply the want of constitu-
tional authority. We must examine that act of Congress now,
as it would have been examined if it had come before this Court
the day after it was enacted. He would not speak irreverently
of the Congress of 1793 ; but he would take occasion to say, the
history of this famous law exhibited some curious reminiscences.
Its origin in a, few words was this. In the year 1791, the Gover-
nor of Pennsylvania made a demand on the Governor of Virginia,
for the surrender of three persons charged with kidnapping a free
negro. After taking the advice of the attorney-general of that
state, the governor refused to comply, on the ground that although
the Constitution made it obligatory on him to surrender up fugi-
tives from justice, yet as there was no act of Congress directing the
mode in which it should be done, he could not and would not
yield to the demand. The Governor of Pennsylvania submitted
the question to President Washington, who, after consulting the
attorney-general of the United States, brought the whole matter
to the notice of Congress. See 1 American State Papers, Miscel-
laneous, 38, 39. That body referred the subject to a committee ;
a bill was reported, substantially the act of 1793. It lay upon
the table for a considerable period, and finally passed and became
a law on the 12th February, 1793. It is to be observed that the
only question submitted, was the one touching fugitives from
justice, not fugitive slaves. The two subjects were compre-
hended by Congress in one bill, and the northern states were
constrained to agree to the provision relative to fugitive slaves,
for the purpose of procuring the passage of a law providing for
the case of fugitives from justice.
The science of legislative log-rolling, which has been deemed
of quite modern origin, appears not to have been unknown to
the Congress of 1793. There is no question about the power
of Congress to legislate on the subject of fugitives from justice.
The demand is to be made by the executive authority, on a
" charge made" against a person, of treason, felony, &c, &c,
who shall flee, &c. The first section of the fourth article of the
Constitution expressly confers on Congress the power of pre-
6 1
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
scribing the manner in which "records and judicial proceed-
ings shall be proved, and the effect thereof." The right, there-
fore, to legislate on this subject is clear. But there is not the
remotest connection between this matter and that of fugitive
slaves. The one has sole reference to crimes perpetrated against
the public peace and public safety ; the other to the recapture
or reclamation of private property : yet Congress classed them
together, and made the provision for one depend on a similar
provision for the other.
What are the features of this act of Congress,, which, as is
contended, was passed in pursuance of the constitutional autho-
rity of the general government ; and which terminated forever,
if such right ever existed, the concurrent power of the states to
legislate on the same subject ? It empowers state judges, magis-
trates, &c, &c, to take cognisance of the cases of fugitive slaves,
together with judges holding their appointments under the na-
tional government. So far as it attempts to vest this or any
jurisdiction in state officers, it is unconstitutional and void.
The solemn decision of this Court has branded such attempt
with condemnation. See Martin v. Hunter's Lessee, 1 Wheat.
304; 3 Story's Commentaries on the Constitution, 114, 115, 386,
603 ; Sergeant's Constitutional Law, 3S6, 39S.
That act, then, is void, so far as relates to all instrumentality
for its execution, but by the judges of the Courts of the United
States. The authority of its framers, as constitutional lawyers,
is thus exploded ; and their boasted work, like all things human,
is characterized by frailty and error. If it even be regarded as
conformable to the Constitution, its execution is rendered almost
impracticable by the want of adequate agents. In a large state
like Pennsylvania, with but two district judges residing three
hundred miles apart, how is the difficulty of obtaining certificates
of removal for fugitive slaves to be obviated ? If the state au-
thorities cannot be called upon to furnish aid, what are the limits
to the obstacles that environ the masters ? A very brief season
of trial will make them known. He would suggest to the Court,
whether this act of Congress was not operative only in the Dis-
trict of Columbia, the territories, and wherever Congress had
exclusive right of legislation. To this extent he did not intend
to question its validity.
JANUARY TERM, 1842.
65
[Prigg v. The Commonwealth of Pennsylvania.]
It was a fair and reasonable presumption from the provision
of the act of Congress itself, authorizing the interposition of state
officers, that Congress, aware of its inherent defect of jurisdiction,
contemplated the co-operative, or concurrent aid of state legisla-
tion, to carry the provisions of this law into effect. If not, why im-
pose on the state magistrates duties which they could not perform?
Would a certificate of removal, given under this void authority,
authorize the master to remove his slave ? Clearly not. Nor
would it afford him any protection against the rescue or escape
of his slave. To seek the aid of such official authority would
be alike dangerous and idle. It would lead to incessant broils
and disturbances of the public peace ; and to the inevitable escape
of the fugitive from his master.
In this state of the case, the legislature of Pennsylvania deem-
ing the act of Congress pursuant to the federal Constitution, steps
forth to aid the pursuers of fugitive slaves. The act of Assembly
of that state of the 25th March, 1826, was passed in the manner
he had already stated, to confer authority on her own magistrates
and judges, which the Constitution had denied under the act
of Congress.
It, in the first place, describes the offence charged against the
defendant in this case, and then proceeds to define the mode in
which the state magistrates and judges shall take cognisance
of the cases of fugitive slaves. It does not change the mode
of making proof on the part of the claimants, nor the mode of
granting certificates of removal ; it simply deprives subordinate
magistrates of the power of granting such certificates, but it
directs their interference to procure the arrest of the fugitive, and
enjoins on the several judges the duty of hearing the proof and
granting the proper certificates for the removal of the fugitive on
certain terms therein prescribed. It does not touch the act of
Congress. It recognises its authority, and leaves it as it stood
before. Proceedings under this act of Assembly are purely vo-
luntary. Claimants may resort to it for aid, or pursue the direc-
tions of the act of Congress. If its provisions are onerous, discard
them. Take shelter under the national law. But it is an addi-
tional remedy provided for the benefit of the slaveholders. It
gives them a short cut to justice, and what cause have they to
complain, if it leaves the other course equally free for their adop-
9 f 2
66
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
tion ? In determining which remedy to invoke, the slave owner
will be governed by circumstances ; distance, place, character
of neighbourhood, clearness of his own proof, &c, &c, and will
act accordingly to the preponderance of advantages. Not one
particle of inconvenience can he suffer under this act of Pennsyl-
vania, while he has the chance of manifold benefits.
The acts of Congress and of Pennsylvania form together a
harmonious system, neither jarring nor conflicting in any part
of its operation. It is careful of the rights of the slaveholder,
and is adapted to the feelings, sympathies, and sovereign power
of the states. If the power to pass laws on the subject of de-
livering up fugitive slaves be concurrent, the states cannot control
the acts of Congress, and cannot therefore impair the right of the
owners. If the power be solely vested in the states, they cannot
impair this right under the federal Constitution. In either case,
the slaveholders may bid defiance to hostile state legislation.
The mode of recapturing or seizing their property by the south-
ern slaveholders, under the laws, both of Congress and of the
legislature of Pennsylvania, is a summary one, in derogation of
the common law; and might be confined to a strict and rigid
adherence to the boundaries laid down on the subject, in either
of them, to the exclusion of the other under the Constitution : but
when the free states themselves who might require this construc-
tion, choose voluntarily to surrender it, and treat it as a remedial
power to be enlarged, by both state and national legislation, for
the benefit of the slaveholders, it is an extraordinary spectacle to
see those most deeply interested arrayed among the adversaries
of this liberal policy. It appeared to him one of the most unac-
countable delusions that ever seized the human mind. He would
leave to future times, as a matter of wonder, the task of discover-
ing why his learned and zealous friends on the other side, and
himself, had not changed places in this argument. Experience
will demonstrate who advocates the true interest, not of the north
only, but of the south, and of all sections of the Union. He did
not for an instant question motives, he spoke of results alone. To
these he would appeal, for a judgment that might abide the test
of time with all its attendant train of circumstances, fraught
with good or ill to our country.
Supposing the power to pass laws on the subject of fugitive
JANUARY TERM, 1842.
67
[Prigg v. The Commonwealth of Pennsylvania.]
slaves to be concurrent, the learned counsel on the other side
contended that it had been exercised by Congress ; that the whole
ground of legislation was provided for ; that the right of the
states was thereby superseded, and that the act of Assembly of
Pennsylvania was absolutely void. To all these positions he
would answer, in addition to what had already been advanced,
that Congress had not covered the whole ground ; that it had ex-
pressly intended to employ the agency of state magistrates, which
could not be done without state legislation ; and that the states,
if they had a right to authorize the action of their officers, could
do so on such terms as they pleased, if they did not contradict
the act of Congress. There was no such contradiction or re-
pugnancy in this case, and of course, the argument raised on that
presumption totally failed.
He could not on this branch of the case fortify his argument
with stronger reason or authority than by quoting the words
of Mr. Justice Story, in the case of Houston v. Moore. On
this basis he did not fear to let it rest. "The Constitution,
containing a grant of powers in many instances similar to those
already existing in the state governments, and some of these
being of vital importance also to state authority and state legis-
lation, it is not to be admitted that a mere grant of such powers
in affirmative terms to Congress, does, per se, transfer an ex-
clusive sovereignty on such subjects to the latter. On the con-
trary, a reasonable interpretation of that instrument necessarily
leads to the conclusion that the powers so granted are never
exclusive of similar powers existing in the states, unless where
the Constitution has expressly in terms given an exclusive power
to Congress, or the exercise of a like power is prohibited to the
states, or there is a direct repugnancy or incompatibility in the
exercise of it by the states." And also, "In all other cases not
falling within the classes already mentioned, it seems unquestion-
able that the states retain concurrent authority with Congress not
only on the letter and spirit of the eleventh amendment of the Con-
stitution, but upon the soundest principles of general reasoning."
3. The vital question in this cause seemed to him to be this :
whether the state of Pennsylvania could not punish the forcible
removal of a negro, in the manner and for the purposes set forth
in this special verdict, as a criminal offence, when such removal
68 SUPREME COURT.
[Prigg t\ The Commonwealth of Pennsylvania.]
was made in total disregard of the act of Congress, and of her
own act of 1826. He need hardly remind the Court, that the
provisions of the federal Constitution under consideration, pre-
scribed that fugitive slaves were to be " delivered up" " on claim."
Both the acts of Congress and of the legislature of Pennsylvania
directed the mode to be pursued in making claim and delivery.
It is obvious that the Constitution contemplated two acts — the
claim by the master, and the delivery in pursuance of it, of the
state where the fugitive was found. One preceded the other ; and
neither could be available to restore the slave to his master alone.
Under the act of Congress, he might " seize" the slave, but could
not remove him without the certificate of the judge or magistrate.
Under the act of 1S26, the magistrate may issue his warrant to
apprehend the fugitive ; but the judge alone can grant the certi-
ficate. Under neither can the master remove the slave without
this certificate. It is his only legal warrant of removal, and it is
a sufficient warrant throughout the whole Union. A forcible
removal is nowhere authorized or countenanced ; on the con-
trary, it can only be a removal under the law, and according to
the law. The master, under the act of Congress, may " seize"
his slave, but only for the purpose of taking him before a judge.
He is protected in making such seizure ; but the moment he
abuses this right, and, in defiance of law, undertakes to remove
his slave without a certificate, he forfeits the protection of the
law and becomes amenable to such punishment as the states
may prescribe.
The act of Congress punishes those who interfere with the
rights of the slaveholder ; but is silent as to the rights of ne-
groes wrongfully seized, and of the states whose territory is
entered by persons, under pretext of right, to violate the laws
and carry forcibly away those who are living under their pro-
tection. These cases are clearly left to the guardianship of the
states themselves. The tenth article of the amendments to the
Constitution secures this right ; and self-respect, if not self-pro-
tection, demands its exercise. It has already been decided, by
this Court, that persons who violate or disregard the provisions
of an act of Congress may be made amenable to state law.
Houston v. Moore, 5 Wheat. 1 ; 2 Hamilton's Works, 347. This
is not on the principle that to violate an act of Congress is a
JANUARY TERM, 1842.
69
[Prigg v. The Commonwealth of Pennsylvania.]
crime against the state ; but that the offence denounced by the
laws of the state is not protected by the national authority, and
hence may be punished as a crime.
Prigg, the defendant in this case, first sought the aid of the stat^
law to seize his slave, and then, in contempt of both its mandates
and those of the act of Congress, removed the fugitive without
making claim, obtaining certificate, or doing any thing to procure
the warrant of the law. This was a wanton insult to the dignity
of the state of Pennsylvania ; and tended directly to produce riots,
disturbances, and ill-blood between her citizens and those of the
state of Maryland. Would it not be monstrous to hold, that an
act which leads to such results, which offends so deeply the honest
prejudices of large portions of the citizens of a state, is not, or
may not be punished as a crime against her sovereignty and her
laws ? If such power do not belong to the states, it is difficult
to conceive how any portion of their police arrangements may
not at any time be annulled and abrogated by the general govern-
ment. A more absolute annihilation of the state sovereignties
than this would be, is not within the stretch of human power.
It is a familiar principle to the Court, that on the ground of
repugnancy to the Constitution, state laws may be void in part,
and valid for the residue. • These questions are extremely deli-
cate ; and this Court will declare laws void for this reason, only
in a clear case. Fletcher v. Peck, 6 Cranch, 87. If possible, the
Court will reconcile them with the Constitution ; and so far as de-
pends on their policy or justice, leave that to the judgment of the
people who enact and must obey them. Dismissing from considera-
tion, for the purposes of this argument, the right of the states to pass
laws on the subject of the delivery up of fugitive slaves, in what
respect does the act of 1826, so far as relates to the punishment of
those who are guilty of kidnapping, conflict with the Constitution
of the United States or with any act of Congress ? He thought
he might challenge the utmost ingenuity to point out such con-
flict. It was clearly the exercise of a reserved power. It only
punished those who set all laws on this subject at naught, and
by their examples did more to endanger the rights of the slave-
holders in the recovery of their fugitives, than all the state laws
ever adopted had done or could do. Such rash and indiscreet
efforts to regain fugitive slaves, as this defendant made, have done
70
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
much to foment the spirit of opposition to slavery in the north ;
and if persisted in, will awaken a feeling not easily subdued or
controlled. Did the chivalrous and considerate slave owners of
the south come themselves in pursuit of their fugitive slaves,
these instances of outrage would seldom, if ever, happen ; but
the agents often employed by them, are of the most debased
character, and, being alike ignorant and regardless of law and
courtesy, excite, by their conduct, the deepest emotions of indig-
nation and abhorrence. It is against such offenders that the
penal enactment in question is chiefly aimed. Can it be possi-
ble that this Court will strike down the arm of state authority,
thus uplifted to maintain peace, order, and the respectful obser-
vance of the law ?
The fact that the negro thus forcibly and illegally removed is
a slave, is wholly immaterial. It is admitted by the other side,
that legislation under the Constitution is necessary to carry the
provision on this subject of fugitive slaves into effect. If so, the
right of removal cannot exist independent of such legislation.
Although the slave may be so in fact, yet he must be identified
and certified by the law to be such, to authorize his removal.
Until this is done, no presumption of slavery arises. True, it
will arise, if "seized" on "claim" and taken before a judge,
but not if removed without this judicial sanction. Here is the
true point of the case. The law protects the owner or agent,
until he proceeds to remove the slave in defiance of its prohibition.
The instant he does this, the crime is committed ; the penalty
is incurred ; the violated law demands its victim. The Constitu-
tion evidently contemplates the act of the law, and not the act
of the party in the recovery of fugitive slaves ; and he who with
a strong hand usurps the prerogative of the law and tramples on
its mandates, has no right to complain of the punishment it inflicts.
The special verdict in this case distinctly admits, that the act
of the defendant is neither sanctioned nor protected by either the
act of Congress or the legislature of Pennsylvania. It was
therefore clear, as he believed, whatever might be the opinion
of the Court upon the broad question of the power of the states
to pass laws directing the mode of delivering up fugitive slaves ;
that the act of Pennsylvania, so far as it affected this case, or was
involved in its determination, was not repugnant to the Constitu-
JANUARY TERM, 1842.
71
[Prigg v. The Commonwealth of Pennsylvania.]
tion, and that accordingly the judgment of the Supreme Court
of that state must be affirmed.
In conclusion, said Mr. Johnson, the Court will allow me to
say, that I have argued this case on the presumption that many
great rules of constitutional interpretation have been settled by
its decisions ; and that I have adopted and applied them so far as
they appeared applicable, without consuming the time or abusing
the patience of the Court, by elaborate inquiries into their justice or
their authority. I have not deemed it respectful to address this
Court as if I were delivering a course of elementary lectures in a
law academy. I know my own duty and the character of this Court
too well, to engage in such an undertaking. I feel persuaded
that my deficiencies will be far more than supplied by the learn-
ing and experience of your honours. I have sought to confine
my argument strictly to the case before you, and I hope within
this scope no points of essential interest have escaped my attention.
I trust I shall be pardoned if I again reiterate my conviction,
that the construction of the Constitution for which I have con-
tended, is the true, rational, and just one. Whatever may be
the opinion of others, it cannot and will not be plausibly alleged
that this construction violates any of its provisions, or endangers
any power vested in either the national or state governments. It
offends no prejudices ; it trenches on no rights ; it sets no example
to be hereafter pleaded in justification of measures which tend
to augment the power of the general government, and to strip
the states of their proudest attributes of sovereignty. It binds
each in its proper sphere ; it invests both with all requisite and
proper authority to perform the functions for which they were
designed, and it divests this obligation to deliver up fugitive
slaves, which, to the sensitive, is harsh and odious, of almost
every feature of painful repugnance to the feelings.
But let the picture be reversed. — Deny the right of the states
to legislate on this subject for the preservation of their own peace
and the protection of their own soil from insult and aggression ;
arrogate exclusive power for the general government to order
and direct how, and by whom alleged fugitive slaves are to be
restored to their masters or hired pursuers, and you arouse a spirit
of discord and resistance, that will neither shrink nor slumber till
the obligation itself be cancelled, or the Union which creates it be
72
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
dissolved. I do not say this in menace — God forbid I should ;
hut in expostulating warning to those who, by demanding too
much, may sacrifice even that to which they are justly entitled.
The various, diversified, and almost antagonist interests of dif-
ferent sections of our Union, render government here a task of no
small caution, forbearance, and responsibility. Time and expe-
rience have emphatically taught us that there is but one mode in
which these interests can be effectually guarded and promoted ;
and that is by a strict, steady, and undeviating adherence to the
spirit and letter of the national Constitution.
The events of every day, and every year, invest the Constitution
with additional claims to our veneration. Its advantages seem to
multiply with our necessities, and to spring out of them. It would
not be difficult in the course of our history, to point out particu-
lar instances, in which different quarters of the Union, influenced
by adverse interests, have sought to apply opposing constructions
to the same provisions, on assumed general, strict, or latitudinarian
principles ; and yet, in a very brief period of time, constructions
of other provisions have compelled these sectional parties to
change their respective ground, and to repudiate what they had
before adopted. These considerations rebuke the spirit of self-con-
fidence and of self-interest, and admonish us, that, in the end, that
construction is the only sound, rational, and safe one, which en-
croaches on no peculiar interest, and which sustains all alike, with
even-handed justice. Let the south and the north remember,
that he who lives by the sword to-day, may die by the sword to-
morrow. Then, indeed, may we read the Constitution in the
benign spirit of the golden rule, to do "unto others, as we would
that they should do unto us."
The framers of our glorious Constitution, appear to have been
little less than inspired. They not only guarded the liberties of
their own age, but they looked into futurity, and provided for the
liberties of ages to follow them — constitutional indemnities which
must then have been established, or never established at all. The
day to intrench political freedom within a written Constitution,
was the day when the fresh recollection of the revolutionary con-
test not only taught its value, but the duty of placing it beyond
the reach of invasion ; and our fathers, conscious of this truth,
performed the duty devolved on them, in a manner worthy of
JANUARY TERM, 1842.
73
[Prigg v. The Commonwealth of Pennsylvania.]
its inestimable importance. The most skeptical must trace the
finger of God in this work; and acknowledge that he has sancti-
fied it in the councils of his Providence.
It is adapted to our condition in every stage of our national
advancement. From the Atlantic to the Pacific Oceans, and from
the lakes to the borders of Mexico, it has stretched forth its che-
rishing arm over our people, and diffused its blessings on all alike.
It has "grown with our growth, and strengthened with our
strength it was the swaddling clothes of our national infancy ; it
is the coat of mail that envelopes the giant-limbs of our national
manhood. Changed as is our condition, modified as may seem
our government in various matters of policy; the Constitution
of our fathers is still solid and entire, the Constitution of their
descendants.
If we would preserve it, if we would perpetuate its benefits,
we must, in its interpretation, adhere with inflexible tenacity to
that spirit of generous and enlightened concession in which it had
its origin, which now and forever must be its breath of life. It
is equally endangered by straining its just powers too far, as by
crippling their operation, and shrivelling up the vigorous energies
which alone make it a form of government capable or worthy of
popular confidence and support. To claim for it, what is with-
held— exclusive authority to legislate on the delicate subject of
directing the delivery up of fugitive slaves, to the entire exclusion
of state interposition, seems to me the rankest usurpation. In
resisting this doctrine, I verily believe I stand here more as the
true friend of the south, than those who honestly, but erroneously,
urge it upon the Court. In the name then of Pennsylvania, in
the name of all the states — in the name of the Union itself — I
protest against this dangerous encroachment on state sovereignty
and state independence. The long and impatient struggle on this
question, I trust is nearly over. The decision of this Court will
put it at rest.
Pennsylvania will be the first to acquiesce in whatever deci-
sion may be pronounced; and deeply and anxiously as she desires
to see all the rights guarantied to her by the national Constitu-
tion steadfastly maintained, she submits, with a confidence that
knows no fear, these rights, which are equally dear to every
10 G
74
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
sister state as they are to her, to the judgment of this high and
enlightened tribunal.
Mr. Justice Story delivered the opinion of the Court.
This is a writ of error to the Supreme Court of Pennsylvania,
brought under the 25th section of the judiciary act of 17S9, ch.
20, for the purpose of revising the judgment of that Court, in a
case involving the construction of the Constitution and laws of the
United States.
The facts are briefly these : The plaintiff in error was indicted
in the Court of Oyer and Terminer for York county, for having,
with force and violence, taken and carried away from that county
to the state of Maryland, a certain negro woman, named Marga-
ret Morgan, with a design and intention of selling and disposing
of, and keeping her as a slave or servant for life, contrary to a
statute of Pennsylvania, passed on the 26th of March, 1S26. That
statute in the first section, in substance, provides, that if any per-
son or persons shall from and after the passing of the act, by
force and violence take and carry away, or cause to be taken and
carried away, and shall by fraud or false pretence, seduce, or
cause to be seduced, or shall attempt to take, carry away, or se-
duce any negro or mulatto from any part of that commonwealth,
with a design and intention of selling and disposing of, or causing
to be sold, or of keeping and detaining, or of causing to be kept
and detained, such negro or mulatto as a slave or servant for life,
or for any term whatsoever; every such person or persons, his or
their aiders or abettors, shall, on conviction thereof, be deemed
guilty of a felony, and shall forfeit and pay a sum not less than
five hundred, nor more than one thousand dollars; and moreover,
shall be sentenced to undergo a servitude for any term or terms
of years, not less than seven years nor exceeding twenty-one
years ; and shall be confined and kept to hard labour, &c. There
are many other provisions in the statute which is recited at large
in the record, but to which it is in our view unnecessary to ad-
vert upon the present occasion.
The plaintiff in error pleaded not guilty to the indictment; and
at the trial the jury found a special verdict, which, in substance,
states, that the negro woman, Margaret Morgan, was a slave for
life, and held to labour and service under and according to the
JANUARY TERM, 1842.
75
[Prigg v. The Commonwealth of Pennsylvania.]
laws of Maryland, to a certain Margaret Ashmore, a citizen of
Maryland ; that the slave escaped and fled from Maryland into
Pennsylvania in 1832; that the plaintiff in error, being legally
constituted the agent and attorney of the said Margaret Ashmore,
in 1837, caused the said negro woman to be taken and appre-
hended as a fugitive from labour by a state constable, under a
warrant from a Pennsylvania magistrate ; that the said negro
woman was thereupon brought before the said magistrate, who
refused to take further cognisance of the case ; and thereupon the
plaintiff in error did remove, take, and carry away the said negro
woman and her children out of Pennsylvania into Maryland, and
did deliver the said negro woman and her children into the cus-
tody and possession of the said Margaret Ashmore. The special
verdict further finds, that one of the children was born in Penn-
sylvania, more than a year after the said negro woman had fled
and escaped from Maryland.
Upon this special verdict, the Court of Oyer and Terminer of
York county, adjudged that the plaintiff in error was guilty of the
offence charged in the indictment. A writ of error was brought
from that judgment to the Supreme Court of Pennsylvania, where
the judgment was, pro forma, affirmed. From this latter judg-
ment, the present writ of error has been brought to this Court.
Before proceeding to discuss the very important and interesting
questions involved in this record, it is fit to say, that the cause
has been conducted in the Court below, and has been brought
here by the co-operation and sanction, both of the state of Mary-
land, and the state of Pennsylvania, in the most friendly and
courteous spirit, with a view to have those questions finally dis-
posed of by the adjudication of this Court ; so that the agitations
on this subject in both states, which have had a tendency to inter-
rupt the harmony between them, may subside, and the conflict
of opinion be put at rest. It should also be added, that the statute
of Pennsylvania of 1826, was (as has been suggested at the bar)
passed with a view of meeting the supposed1 wishes of Maryland
on the subject of fugitive slaves; and that, although it has failed
to produce the good effects intended in its practical construction,
the result was unforeseen and undesigned.
1. The question arising in the case, as to the constitutionality of
the statute of Pennsylvania, has been most elaborately argued at
76
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
the bar. The counsel for the plaintiff in error have contended
that the statute of Pennsylvania is unconstitutional ; first, because
Congress has the exclusive power of legislation upon the subject-
matter under the Constitution of the United States, and under the
act of the 12th of February, 1793, ch. 51, (7), which was passed in
pursuance thereof; secondly, that if this power is not exclusive
in Congress, still the concurrent power of the state legislatures
is suspended by the actual exercise of the power by Congress ;
and thirdly, that if not suspended, still the statute of Pennsyl-
vania, in all its provisions applicable to this case, is in direct
collision with the act of Congress, and therefore is unconstitu-
tional and void. The counsel for Pennsylvania maintain the
negative of all these points.
Few questions which have ever come before this Court in-
volve more delicate and important considerations; and few upon
which the public at large may be presumed to feel a more pro-
found and pervading interest. We have accordingly given them
our most deliberate examination ; and it has become my duty to
state the result to which we have arrived, and the reasoning by
which it is supported.
Before, however, we proceed to the points more immediately
before us, it may be well — in order to clear the case of difficulty —
to say, that in the exposition of this part of the Constitution, we
shall limit ourselves to those considerations which appropriately
and exclusively belong to it, without laying down any rules of
interpretation of a more general nature. It will, indeed, pro-
bably, be found, when we look to the character of the Constitu-
tion itself, the objects which it seeks to attain, the powers which
it confers, the duties which it enjoins, and the rights which it
secures, as well as the known historical fact that many of its
provisions were matters of compromise of opposing interests and
opinions; that no uniform rule of interpretation can be applied
to it which may not allow, even if it does not positively demand,
many modifications in its actual application to particular clauses.
And, perhaps, the safest rule of interpretation after all will be
found to be to look to the nature and objects of the particular
powers, duties, and rights, with all the lights and aids of contem-
porary history ; and to give to the words of each just such opera-
JANUARY TERM, 1842.
77
[Prigg v. The Commonwealth of Pennsylvania.]
tion and force, consistent with their legitimate meaning, as may
fairly secure and attain the ends proposed.
There are two clauses in the Constitution upon the subject
of fugitives, which stand in juxtaposition with each other, and
have been thought mutually to illustrate each other. They are
both contained in the second section of the fourth article, and are
in the following words : "A" person charged in any state with
treason, felony, or other crime, who shall flee from justice, and
be found in another state, shall, on demand of the executive
authority of the state from which he fled, be delivered up, to be
removed to the state having jurisdiction of the crime."
"No person held to service or labour in one state under the laws
thereof, escaping into another, shall in consequence of any law
or regulation therein, be discharged from such service or labour ;
but shall be delivered up, on claim of the party to whom such
service or labour may be due."
The last clause is that, the true interpretation whereof is directly
in judgment before us. Historically, it is well known, that the
object of this clause was to secure to the citizens of the slavehold-
ing states the complete right and title of ownership in their slaves,
as property, in every state in the Union into which they might
escape from the state where they were held in servitude. The
full recognition of this right and title was indispensable to the
security of this species of property in all the slaveholding states;
and, indeed, was so vital to the preservation of their domestic
interests and institutions, that it cannot be doubted that it consti-
tuted a fundamental article, without the adoption of which the
Union could not have been formed. Its true design was to guard
against the doctrines and principles prevalent in the non-siave-
holding states, by preventing them from intermeddling with, or
obstructing, or abolishing the rights of the owners of slaves.
By the general law of nations, no nation is bound to recognise
the state of slavery, as to foreign slaves found within its terri-
torial dominions, when it is in opposition to its own policy and
institutions, in favour of the subjects of other nations where slavery
is recognised. If it does it, it is as a matter of comity, and not as
a matter of international right. The state of slavery is deemed
to be a mere municipal regulation, founded upon and limited to the
range of the territorial laws. This was fully recognised in Somerset's
g 2
78
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
Case, Lofft's Rep. 1 ; S. C, 11 State Trials by Harg. 340 ; S. C,
20 Howell's State Trials, 79 ; 'which was decided before the Ame-
rican revolution. It is manifest from this consideration, that if
the Constitution had not contained this clause, every non-slave-
holding state in the Union would have been at liberty to have
declared free all runaway slaves coming within its limits, and to
have given them entire immunity and protection against the claims
of their masters ; a course which would have created the most
bitter animosities, and engendered perpetual strife between the
different states. The clause was, therefore, of the last import-
ance to the safety and security of the southern states ; and could
not have been surrendered by them without endangering their
whole property in slaves. The clause was accordingly adopted
into the Constitution by the unanimous consent of the framers
of it ; a proof at once of its intrinsic and practical necessity.
How, then, are we to interpret the language of the clause ?
The true answer is, in such a manner, as, consistently with the
words, shall fully and completely effectuate the whole objects of it.
If by one mode of interpretation the right must become shadowy
and unsubstantial, and without any remedial power adequate
to the end ; and by another mode it will attain its just end and
secure its manifest purpose ; it would seem, upon principles of
reasoning, absolutely irresistible, that the latter ought to prevail.
No Court of justice can be authorized so to construe any clause
of the Constitution as to defeat its obvious ends, when another
construction, equally accordant with the words and sense thereof,
will enforce and protect them.
The clause manifestly contemplates the existence of a positive,
unqualified right on the part of the owner of the slave, which no
state law or regulation can in any way qualify, regulate, control,
or restrain. The slave is not to be discharged from service or
labour, in consequence of any state law or regulation. Now,
certainly, without indulging in any nicety of criticism upon words,
it may fairly and reasonably be said, that any state law or state
regulation, which interrupts, limits, delays, or postpones the right
of the owner to the immediate possession of the slave, and the
immediate command of his service and labour, operates, pro
tanto, a discharge of the slave therefrom. The question can never
be, how much the slave is discharged from ; but whether he is
JANUARY TERM, 1842.
79
[Prigg v. The Commonwealth of Pennsylvania.]
discharged from any, by the natural or necessary operation of
state laws or state regulations. The question is not one of quan-
tity or degree, but of withholding, or controlling the incidents of
a positive and absolute right.
We have said that the clause contains a positive and unquali-
fied recognition of the right of the owner in the slave, unaffected
by any state law or regulation whatsoever, because there is no
qualification or restriction of it to be found therein ; and we have
no right to insert any which is .not expressed, and cannot be
fairly implied ; especially are we estopped from so doing, when
the clause puts the right to the service or labour upon the
same ground and to the same extent in every other state as in
the state from which the slave escaped, and in which he was held
to the service or labour. If this be so, then all the incidents to
that right attach also ; the owner must, therefore, have the right
to seize and repossess the slave, which the local laws of his own
state confer upon him as property ; and we all know that this
right of seizure and recaption is universally acknowledged in all
the slaveholding states. Indeed, this is no more than a mere
affirmance of the principles of the common law applicable to
this very subject. Mr. Justice Blackstone (3 Bl. Comm. 4) lays
it down as unquestionable doctrine. " Recaption or reprisal (says
he) is another species of remedy by the mere act of the party
injured. This happens when any one hath deprived another of
his property in goods or chattels personal, or wrongfully detains
one's wife, child, or servant; in which case the owner of tin;
goods, and the husband, parent, or master may lawfully claim
and retake them, wherever he happens to find them, so it be not
in a riotous manner, or attended with a breach of the peace."
Upon this ground we have not the slightest hesitation in holding,
that, under and in virtue of the Constitution, the owner of a slave
is clothed with entire authority, in every state in the Union, to
seize and recapture his slave, whenever he can do it without any
breach of the peace, or any illegal violence.' In this sense, and
to this extent this clause of the Constitution may properly be said
to execute itself ; and to require no aid from legislation, state or
national.
But the clause of the Constitution does not stop here ; nor, in-
deed, consistently with its professed objects, could it do bo. Many
80
SUPREME COURT.
[Prigg r. The Commonwealth of Pennsylvania.]
cases must arise in which, if the remedy of the owner were con-
fined to the mere right of seizure and recaption, he would be
utterly without any adequate redress. He may not be able to lay
his hands upon the slave. He may not be able to enforce his
rights against persons who either secrete or conceal, or withhold
the slave. He may be restricted by local legislation as to the
mode of proofs of his ownership ; as to the Courts in which he
shall sue, and as to the actions which he may bring ; or the pro-
cess he may use to compel the delivery of the slave. Nay, the
local legislation may be utterly inadequate to furnish the appro-
priate redress, by authorizing no process in rem, or no specific
mode of repossessing the slave, leaving the owner, at best, not
that right which the Constitution designed to secure — a specific
delivery and repossession of the slave, but a mere remedy in
damages ; and that perhaps against persons utterly insolvent or
wortliless. The state legislation may be entirely silent on the
whole subject, and its ordinary remedial process framed with dif-
ferent views and objects ; and this may be innocently as well as
designedly done, since every state is perfectly competent, and has
the exclusive right to prescribe the remedies in its own judicial
tribunals, to limit the time as well as the mode of redress, and to
deny jurisdiction over cases, which its own policy and its own
institutions either prohibit or discountenance.
If, therefore, the clause of the Constitution had stopped at the
mere recognition of the right, without providing or contemplating
any means by which it might be established and enforced in cases
where it did not execute itself, it is plain that it would have, in a
great variety of cases, a delusive and empty annunciation. If it
did not contemplate any action either through state or national
legislation, as auxiliaries to its more perfect enforcement in the
form of remedy, or of protection, then, as there would be no duty
on either to aid the right, it would be left to the mere comity of
the states to act as they should please ; and would depend for its
security upon the changing course of public opinion, the muta-
tions of public policy, and the general adaptations of remedies
for purposes strictly according to the lex fori.
And this leads us to the consideration of the other part of the
clause, which implies at once a guaranty and duty. It says, " But
he (the slave) shall be delivered up on claim of the party to
JANUARY TERM, 1842.
81
[Prigg v. The Commonwealth of Pennsylvania.]
whom such service or labour may be due.5' Now, we think it
exceedingly difficult, if not impracticable, to read this language
and not to feel that it contemplated some farther remedial re-
dress than that which might be administered at the hands of the
owner himself. A claim is to be made. What is a claim ? It is,
in a just juridical sense, a demand of some matter as of right made
by one person upon another, to do or to forbear to do some act
or thing as a matter of duty. A more limited, but at the same
time an equally expressive definition was given by Lord Dyer, as
cited in Stowell v. Zouch, Plowden, 359 ; and it is equally applica-
ble to the present case : that " a claim is a challenge by a man of
the propriety or ownership of a thing, which he has not in posses-
sion, but which is wrongfully detained from him." The slave is to
be delivered up on the claim. By whom to be delivered up ? In
what mode to be delivered up ? How, if a refusal takes place,
is the right of delivery to be enforced ? Upon what proofs ?
What shall be the evidence of a rightful recaption or delivery ?
When and under what circumstances shall the possession of the
owner, after it is obtained, be conclusive of his right, so as to
preclude any further inquiry or examination into it by local tri-
bunals or otherwise, while the slave, in possession of the owner,
is in transitu to the state from which he fled ?
These, and many other questions, will readily occur upon the
slightest attention to the clause ; and it is obvious that they can
receive but one satisfactory answer. They require the aid of
legislation to protect the right, to enforce the delivery, and to
secure the subsequent possession of the slave. If, indeed, the
Constitution guarantees the right, and if it requires the delivery
upon the claim of the owner, (as cannot well be doubted.) the
natural inference certainly is, that the national government is
clothed with the appropriate authority and functions to enforce
it. The fundamental principle applicable to all cases of this sort,
would seem to be, that where the end is required, the means are
given ; and where the duty is enjoined, the ability to perform it is
contemplated to exist on the part of the functionaries to whom it
is entrusted. The clause is found in the national Constitution, and
not in that of any state. It does not point out any state func-
tionaries, or any state action to carry its provisions into effect.
The states cannot, therefore, be compelled to enforce them ; and
11
82
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
it might well be deemed an unconstitutional exercise of the power
of interpretation, to insist that the states are bound to provide
means to carry into effect the duties of the national government,
nowhere delegated or intrusted to them by the Constitution. On
the contrary, the natural, if not the necessary conclusion is, that
the national government, in the absence of all positive provisions
to the contrary, is bound, through its own proper departments,
legislative, judicial, or executive, as the case may require, to carry
into effect all the rights and duties imposed upon it by the Con-
stitution. The remark of Mr. Madison, in the Federalist, (No. 43,)
would seem in such cases to apply with peculiar force. " A right
(says he) implies a remedy ; and where else would the remedy
be deposited, than where it is deposited by the Constitution ?"
meaning, as the context shows, in the government of the United
States.
It is plain, then, that where a claim is made by the owner, out
of possession, for the delivery of a slave, it must be made, if at
all, against some other person ; and inasmuch as the right is a
right of property capable of being recognised and asserted by
proceedings before a Court of justice, between parties adverse to
each other, it constitutes, in the strictest sense, a controversy be-
tween the parties, and a case " arising under the Constitution" of
the United States ; within the express delegation of judicial power
given by that instrument. Congress, then, may call that power
into activity for the very purpose of giving effect to that right ;
and if so, then it may prescribe the mode and extent in which it
shall be applied, and how, and under what circumstances the pro-
ceedings shall afford a complete protection and guaranty to the
right.
Congress has taken this very view of the power and duty of the
national government. As early as the year 1791, the attention
of Congress was drawn to it, (as we shall hereafter more fully
see,) in consequence of some practical difficulties arising under the
other clause, respecting fugitives from justice escaping into other
states. The result of their deliberations, was the passage of the
act of the 12th of February, 1793, ch. 51, (7,) which, after having,
in the first and second sections, provided for the case of fugitives
from justice by a demand to be made of the delivery through
the executive authority of the state where they are found,
JANUARY TERM, 1842.
83
[Prigg v. The Commonwealth of Pennsylvania.]
proceeds, in the third section, to provide, that when a person held
to labour or service in any of the United States, shall escape into
any other of the states or territories, the person to whom such
labour or service may be due, his agent or attorney, is hereby em-
powered to seize or arrest such fugitive from labour, and take
him or her before any judge of the Circuit or District Courts of the
United States, residing or being within the state, or before any
magistrate of a county, city, or town corporate, wherein such
seizure or arrest shall be made ; and upon proof to the satisfaction
of such judge or magistrate, either by oral evidence or affidavit,
&c, that the person so seized or arrested, doth, under the laws of
the state or territory from which he or she fled, owe service or
labour to the person claiming him or her, it shall be the duty of
such judge or magistrate, to give a certificate thereof to such
claimant, his agent or attorney, which shall be sufficient warrant
for removing the said fugitive from labour, to the state or territory
from which he or she fled. The fourth section provides a penalty
against any person who shall knowingly and willingly obstruct
or hinder such claimant, his agent, or attorney, in so seizing or
arresting such fugitive from labour, or rescue such fugitive from
the claimant, or his agent, or attorney when so arrested, or who
shall harbour or conceal such fugitive after notice that he is such ;
and it also saves to the person claiming such labour or service,
his right of action for or on account of such injuries.
In a general sense, this act may be truly said to cover the whole
ground of the Constitution, both as to fugitives from justice, and
fugitive slaves ; that is, it covers both the subjects, in its enact-
ments; not because it exhausts the remedies which may be ap-
plied by Congress to enforce the rights, if the provisions of the
act shall in practice be found not to attain the object of the Con-
stitution ; but because it points out fully all the modes of attain-
ing those objects, which Congress, in their discretion, have as yet
deemed expedient or proper to meet the exigencies of the Consti-
tution. If this be so, then it would seem, upon just principles of
construction, that the legislation of Congress, if constitutional,
must supersede all state legislation upon the same subject ; and by
necessary implication prohibit it. For if Congress have a consti-
tutional power to regulate a particular subject, and they do actu-
ally regulate it in a given manner, and in a certain form, it cannot
84
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
be that the state legislatures have a right to interfere ; and, as it
were, by way of complement to the legislation of Congress, to
prescribe additional regulations, and what they may deem auxi-
liary provisions for the same purpose. In such a case, the legis-
lation of Congress, in what it does prescribe, manifestly indicates
that it does not intend that there shall be any farther legislation
to act upon the subject-matter. Its silence as to what it does not
do, is as expressive of what its intention is as the direct provisions
made by it. This doctrine was fully recognised by this Court, in
the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22 ; where it
was expressly held, that where Congress have exercised a power
over a particular subject given them by the Constitution, it is not
competent for state legislation to add to the provisions of Congress
upon that subject ; for that the will of Congress upon the whole
subject is as clearly established by what it had not declared, as
by what it has expressed.
But it has been argued, that the act of Congress is unconstitu-
tional, because it does not fall within the scope of any of the enu-
merated powers of legislation confided to that body ; and therefore
it is void. Stripped of its artificial and technical structure, the
argument comes to this, that although rights are exclusively se-
cured by, or duties are exclusively imposed upon the national
government, yet, unless the power to enforce these rights, or to
execute these duties can be found among the express powers of
legislation enumerated in the Constitution, they remain without
any means of giving them effect by any act of Congress; and they
must operate solely proprio vigore, however defective may be their
operation ; nay, even although, in a practical sense, they may be-
come a nullity from the want of a proper remedy to enforce them,
or to provide against their violation. If this be the true interpre-
tation of the Constitution, it must, in a great measure, fail to attain
many of its avowed and positive objects as a security of rights,
and a recognition of duties. Such a limited construction of the
Constitution has never yet been adopted as correct, either in
theory or practice. No one has ever supposed that Congress
could, constitutionally, by its legislation, exercise powers, or enact
laws beyond the powers delegated to it by the Constitution; but
it has, on various occasions, exercised powers which were neces-
sary and proper as means to carry into effect rights expressly
JANUARY TERM, 1842.
85
[Prigg v. The Commonwealth of Pennsylvania.]
given, and duties expressly enjoined thereby. The end being
required, it has been deemed a just and neeessary implication,
that the means to accomplish it are given also ; or, in other words,
that the power flows as a necessary means to accomplish the end.
Thus, for example, although the Constitution has declared that
representatives shall be apportioned among the states according
to their respective federal numbers ; and, for this purpose, it has
expressly authorized Congress, by law, to provide for an enumera-
tion of the population every ten years ; yet the power to appor-
tion representatives after this enumeration is made, is nowhere
found among the express powers given to Congress, but it has
always been acted upon as irresistibly flowing from the duty
positively enjoined by the Constitution. Treaties made between
the United States and foreign powers, often contain special pro-
visions, which do not execute themselves, but require the interpo-
sition of Congress to carry them into effect, and Congress has
constantly, in such cases, legislated on the subject ; yet, although
the power is given to the executive, with the consent of the
senate, to make treaties, the power is nowhere in positive terms
conferred upon Congress to make laws to carry the stipulations
of treaties into effect. It has been supposed to result from the
duty of the national government to fulfil all the obligations of
treaties. The senators and representatives in Congress are, iu
all cases, except treason, felony, and breach of the peace, ex-
empted from arrest during their attendance at the sessions there-
of, and in going to and returning from the same. May not Con-
gress enforce this right by authorizing a writ of habeas corpus, to
free them from an illegal arrest in violation of this clause of the
Constitution? If it may not, then the specific remedy to enforce
it must exclusively depend upon the local legislation of the states;
and may be granted or refused according to their own varying
policy, or pleasure. The Constitution also declares that the pri-
vilege of the writ of habeas corpus shall not be suspended, unless,
when in cases of rebellion or invasion, the public safety may re-
quire it. No express power is given to Congress to secure this
invaluable right in the non-enumerated cases, or to suspend the
writ in cases of rebellion or invasion. And yet it would be dif-
ficult to say, since this great writ of liberty is usually provided
for by the ordinary functions of legislation, and can be effectually
II
86
SUPREME COURT.
[Prigg 0. The Commonwealth of Pennsylvania.]
provided for only in this way, that it ought not to be deemed by
necessary implication within the scope of the legislative power of
Congress.
These cases are put merely by way of illustration, to show that
the rule of interpretation, insisted upon at the argument, is quite
too narrow to provide for the ordinary exigencies of the national
government, in cases where rights are intended to be absolutely
secured, and duties are positively enjoined by the Constitution.
The very act of 1793, now under consideration, affords the
most conclusive proof that Congress has acted upon a very dif-
ferent rule of interpretation, and has supposed that the right as
well as the duty of legislation on the subject of fugitives from justice,
and fugitive slaves was within the scope of the constitutional
authority conferred on the national legislature. In respect to
fugitives from justice, the Constitution, although it expressly pro-
vides that the demand shall be made by the executive authority
of the state from which the fugitive has fled, is silent as to the
party upon whom the demand is to be made, and as to the mode
in which it shall be made. This very silence occasioned embar-
rasments in enforcing the right and duty at an early period after
the adoption of the Constitution ; and produced a hesitation on the
part of the executive authority of Virginia to deliver up a fugi-
tive from justice, upon the demand of the executive of Pennsyl-
vania, in the year 1791 ; and as we historically know from the
message of President Washington and the public documents of that
period, it was the immediate cause of the passing of the act of
1793, which designated the person (the state executive) upon
whom the demand should be made, and the mode and proofs
upon and in which it should be made. From that time down to
the present hour, not a doubt has been breathed upon the consti-
tutionality of this part of the act; and every executive in the
Union has constantly acted upon and admitted its validity.
Yet the right and the duty are dependent, as to their mode of
execution, solely on the act of Congress ; and but for that, they
would remain a nominal right and passive duty; the execution
of which being intrusted to and required of no one in particular,
all persons might be at liberty to disregard it. This very acquies-
cence, under such circumstances, of the highest state functionaries,
is a most decisive proof of the universality of the opinion that the
JANUARY TERM, 1842.
87
[Prigg v. The Commonwealth of Pennsylvania.]
act is founded in a just construction of the Constitution; inde-
pendent of the vast influence which it ought to have as a con-
temporaneous exposition of the provisions, by those who were its
immediate framers, or intimately connected with its adoption.
The same uniformity of acquiescence in the validity of the act
of 1793, upon the other part of the subject-matter, that of
fugitive slaves, has prevailed throughout the whole Union until
a comparatively recent period. Najr; being from its nature and
character more readily susceptible of being brought into contro-
versy, in Courts of justice, than the former, and of enlisting in
opposition to it the feelings, and it may be the prejudices of some
portions of the non-slaveholding states; it has naturally been
brought under adjudication in several states in the Union, and
particularly in Massachusetts, New York, and Pennsylvania,
and on all these occasions its validity has been alarmed. The
cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle,
62 ; Glen v. Hodges, 9 Johns. Rep. 67 ; Jack v. Martin, 12 Wend.
Rep. 311 ; S. C, 12 Wend. Rep. 507 ; and Com. v. Griffin, 2 Pick.
Rep. 11; are directly in point. So far as the judges of the
Courts of the United States have been called upon to enforce it,
and to grant the certificate required by it, it is believed that it
has been uniformly recognised as a binding and valid law ; and
as imposing a constitutional duty. Under such circumstances, if
the question were one of doubtful construction, such long ac-
quiescence in it, such contemporaneous expositions of it, and such
extensive and uniform recognition of its validity, would in our
judgment entitle the question to be considered at rest; unless
indeed the interpretation of the Constitution is to be delivered
over to interminable doubt throughout the whole progress of
legislation, and of national operations. Congress, the executive,
and the judiciary have, upon various occasions, acted upon this
as a sound and reasonable doctrine. Especially did this Court
in the cases of Stuart v. Laird, 1 Cranch Rep. 299; and Martin
v. Hunter, 1 Wheat. Rep. 304 ; and in Cohen v. The Common-
wealth of Virginia, 6 Wheat. Rep. 264; rely upon contempora-
neous expositions of the Constitution, and long acquiescence in
it, with great confidence, in the discussion of questions of a highly
interesting and important nature.
But we do not wish to rest our present opinion upon the ground
SUPREME COURT.
[Prigg t*. The Commonwealth of Pennsylvania.]
either of contemporaneous exposition, or long acquiescence, or
even practical action ; neither do we mean to admit the ques-
tion to be of a doubtful nature, and therefore as properly calling
for the aid of such considerations. On the contrary, our judg-
ment would be the same if the question were entirely new, and
the act of Congress were of recent enactment. We hold the
act to be clearly constitutional in all its leading provisions, and,
indeed, with the exception of that part which confers authority
upon state magistrates, to be free from reasonable doubt and
difficulty upon the grounds already stated. As to the authority
so conferred upon state magistrates, while a difference of opinion
has existed, and may exist still on the point, in different states,
whether state magistrates are bound to act under it ; none is en-
tertained by this Court that state magistrates may, if they choose,
exercise that authority, unless prohibited by state legislation.
The remaining question is, whether the power of legislation
upon this subject is exclusive in the national government, or
concurrent in the states, until it is exercised by Congress. In our
opinion it is exclusive ; and we shall now proceed briefly to state
our reasons for that opinion. The doctrine stated by this Court,
in Sturgis v. Crowninshield, 4 Wheat. Rep. 122, 193, contains the
true, although not the sole rule or consideration, which is applica-
ble to this particular subject. u Wherever," said Mr. Chief Jus-
tice Marshall, in delivering the opinion of the Court, "the terms
in which a power is granted to Congress, or the nature of the
power require that it should be exercised exclusively by Con-
gress, the subject is as completely taken from the state legislatures,
as if the}' had been forbidden to act. 93 The nature of the power,
and the true objects to be attained by it, are then as important to
be weighed, in considering the question of its exclusiveness, as
the words in which it is granted.
In the first place, it is material to state, (what has been already
incidentally hinted at,) that the right to seize and retake fugitive
slaves, and the duty to deliver them up, in whatever state of the
Union they may be found, and of course the corresponding
power in Congress to use the appropriate means to enforce the
right and duty, derive their whole validity and obligation exclu-
sively from the Constitution of the United States ; and are there,
for the first time, recognised and established in that peculiar cha-
JANUARY TERM, 1842.
89
[Prigg v. The Commonwealth of Pennsylvania.]
racter. Before the adoption of the Constitution, no state had
any power whatsoever over the subject, except within its own
territorial limits, and could not, bind the sovereignty or the legis-
lation of other states. Whenever the right was acknowledged or
the duty enforced in any state, it was as a matter of comity and
favour, and not as a matter of strict moral, political, or interna-
tional obligation or duty. Under the Constitution it is recognised
as an absolute, positive, right and duty, pervading the whole
Union with an equal and supreme force, uncontrolled and uncon-
trollable by state sovereignty or state legislation. It is, therefore,
in a just sense a new and positive right, independent of comity,
confined to no territorial limits, and bounded by no state institu-
tions or policy. The natural inference deducible from this con-
sideration certainly is, in the absence of any positive delegation
of power to the state legislatures, that it belongs to the legisla-
tive department of the national government, to which it owes its
origin and establishment. It would be a strange anomaly, and
forced construction, to suppose that the national government
meant to rely for the due fulfilment of its own proper duties and
the rights which it intended to secure, upon state legislation ; and
not upon that of the Union. A fortiori, it would be more objec-
tionable to suppose that a power, which was to be the same
throughout the Union, should be confided to state sovereignty,
which could not rightfully act beyond its own territorial limits.
In the next place, the nature of the provision and the objects
to be attained by it, require that it should be controlled by one
and the same will, and act uniformly by the same system of
regulations throughout the Union. If, then, the states have
a right, in the absence of legislation by Congress, to act upon
the subject, each state is at liberty to prescribe just such regula-
tions as suit its own policy, local convenience, and local feelings.
The legislation of one state may not only be different from, but
utterly repugnant to and incompatible with that of another. The
time, and mode, and limitation of the remedy ; the proofs of the
title, and all other incidents applicable thereto, may be prescribed
in one state, which are rejected or disclaimed in another. One
state may require the owner to sue in one mode, another in a dif-
ferent mode. One state may make a statute of limitations as to
the remedy, in its own tribunals, short and summary : another
12 h 2
90
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
may prolong the period, and yet restrict the proofs : nay, some
states may utterly refuse to act upon the subject at all ; and others
may refuse to open its Courts to any remedies in rem, because
they would interfere with their own domestic policy, institutions,
or habits. The right, therefore, would never, in a practical
sense be the same in all the states. It would have no unity of
purpose, or uniformity of operation. The duty might be enforced
in some states ; retarded, or limited in others ; and denied, as com-
pulsory in many, if not in all. Consequences like these must
have been foreseen as very likely to occur in the non-slaveholding
states; where legislation, if not silent on the subject, and purely
voluntary, could scarcely be presumed to be favourable to the
exercise of the rights of the owner.
It is scarcely conceivable that the slaveholding states would have
been satisfied with leaving to the legislation of the non-slaveholding
states, a power of regulation, in the absence of that of Congress,
which would or might practically amount to a power to destroy
the rights of the owner. If the argument, therefore, of a concur-
rent power in the states to act upon the subject-matter in the ab-
sence of legislation by Congress, be well founded ; then, if Congress
had never acted at all ; or if the act of Congress should be repealed
without providing a substitute, there would be a resulting authority
in each of the states to regulate the whole subject at its pleasure ;
and to dole out its own remedial justice, or withhold it at its pleasure
and according to its own views of policy and expediency. Surely
such a state of things never could have been intended, under such
a solemn guarantee of right and duty. On the other hand, con-
strue the right of legislation as exclusive in Congress, and every
evil, and every danger vanishes. The right and the duty are
then co-extensive and uniform in remedy and operation through-
out the whole Union. The owner has the same security, and the
same remedial justice, and the same exemption from state regula-
tion and control, through however many states he may pass with
his fugitive slave in his possession, in transitu, to his own domicile.
But, upon the other supposition, the moment he passes the state
line, he becomes amenable to the laws of another sovereignty,
whose regulations may greatly embarrass or delay the exercise
of his rights ; and even be repugnant to those of the state where
he first arrested the fugitive. Consequences like these show that
JANUARY TERM, 1842.
91
[Prigg v. The Commonwealth of Pennsylvania.]
the nature and objects of the provision imperiously require, that,
to make it effectual, it should be construed to be exclusive of state
authority. We adopt the language of this Court in Sturgis v.
Crowninshield, 4 Wheat. Rep. 193, and say, that "it has never
been supposed that the concurrent power of legislation extended
to every possible case in which its exercise by the states has not
been expressly prohibited. The confusion of such a practice-
would be endless." And we know no case in which the confu-
sion and public inconvenience and mischiefs thereof, could be
more completely exemplified than the present.
These are some of the reasons, but by no means all, upon which
we hold the power of legislation on this subject to be exclusive
in Congress. To guard, however, against any possible miscon-
struction of our views, it is proper to state, that we are by no
means to be understood in any manner whatsoever to doubt or to
interfere with the police power belonging to the states in virtue
of their general sovereignty. That police power extends over all
subjects within the territorial limits of the states; and has never
been conceded to the United States. It is wholly distinguishable
from the right and duty secured by the provision now under con-
sideration; which is exclusively derived from and secured by the
Constitution of the United States, and owes its whole efficacy there-
to. We entertain no doubt whatsoever, that the states, in virtue
of their general police power, possess full jurisdiction to arrest and
restrain runaway slaves, and remove them from their borders, and
otherwise to secure themselves against their depredations and evil
example, as they certainly may do in cases of idlers, vagabonds,
and paupers. The rights of the owners of fugitive slaves are in
no just sense interfered with, or regulated by such a course ; and
in many cases, the operations of this police power, although de-
signed essentially for other purposes, for the protection, safety, and
peace of the state, may essentially promote and aid the interests
of the owners. But such regulations can never be permitted to
interfere with or to obstruct the just rights of the owner to reclaim
his slave, derived from the Constitution of the United States; or
with the remedies prescribed by Congress to aid and enforce the
same.
Upon these grounds, we are of opinion that the act of Pennsyl-
vania upon which this indictment is founded, is unconstitutional
92
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
and void. It purports to punish as a public offence against that
state, the very act of seizing and removing a slave by his master,
which the Constitution of the United States was designed to jus-
tify and uphold. The special verdict finds this fact, and the State
Courts have rendered judgment against the plaintiff in error upon
that verdict. That judgment must, therefore, be reversed, and
the cause remanded to the Supreme Court of Pennsylvania: with
directions to carry into effect the judgment of this Court rendered
upon the special verdict in favour of the plaintiff in error.
Mr. Chief Justice Taney.
I concur in the opinion pronounced by the Court, that the law
of Pennsylvania, under which the plaintiff in error was indicted,
is unconstitutional and void ; and that the judgment against him
must be reversed. But as the questions before us arise upon the
construction of the Constitution of the United States, and as I do
not assent to all the principles contained in the opinion just de-
livered, it is proper to state the points on which I differ.
I agree entirely in all that is said in relation to the right of
the master, by virtue of the third clause of the second section of
the fourth article of the Constitution of the United States, to arrest
his fugitive slave in any state wherein he may find him. He has
a right, peaceably, to take possession of him and carry him away
without any certificate or warrant from a judge of the District
or Circuit Court of the United States, or from any magistrate of
the state ; and whoever resists or obstructs him, is a wrongdoer :
and every state law which proposes directly or indirectly to au-
thorize such resistance or obstruction is null and void, and affords
no justification to the individual or the officer of the state who
acts under it. This right of the master being given by the Con-
stitution of the United States, neither Congress nor a state legisla-
ture can by any law or regulation impair it, or restrict it.
I concur also in all that is contained in the opinion concerning
the power of Congress to protect the citizens of the slaveholding
states, in the enjoyment of this right; and to provide by law an
effectual remedy to enforce it, and to inflict penalties upon those
who shall violate its provisions ; and no state is authorized to
pass any law, that comes in conflict in any respect with the
remedy provided by Congress.
JANUARY TERM, 1842.
93
[Prigg v. The Commonwealth of Pennsylvania.]
The act of February 12th, 1793, is a constitutional exercise of
this power; and every state law which requires the master,
against his consent, to go before any state tribunal or officer, be-
fore he can take possession of his property ; or which authorizes
a state officer to interfere with him, when he is peaceably re-
moving it from the state, is unconstitutional and void.
But, as I understand the opinion of the Court, it goes further,
and decides that the power to provide a remedy for this right is
vested exclusively in Congress; and that all laws upon the sub-
ject passed by a state, since the adoption of the Constitution of
the United States, are null and void ; even although they were
intended, in good faith, to protect the owner in the exercise of his
rights of property, and do not conflict in any degree with the act
of Congress.
I do not consider this question as necessarily involved in the
case before us ; for the law of Pennsylvania, under which the
plaintiff in error was prosecuted, is clearly in conflict with the
Constitution of the United States, as well as with the law of 1793.
But as the question is discussed in the opinion of the Court, and
as I do not assent either to the doctrine or the reasoning by which
it is maintained, I proceed to state very briefly my objections.
The opinion of the Court maintains that the power over this
subject is so exclusively vested in Congress, that no state, since
the adoption of the Constitution, can pass any law in relation to
it. In other words, according to the opinion just delivered, the
state authorities are prohibited from interfering for the purpose
of protecting the right of the master and aiding him in the reco-
very of his property. I think the states are not prohibited ; and
that, on the contrary, it is enjoined upon them as a duty to pro-
tect and support the owner when he is endeavouring to obtain
possession of his property found within their respective terri-
tories.
The language used in the Constitution does not, in my judg-
ment, justify the construction given to it by the Court. It con-
tains no words prohibiting the several states from passing laws to
enforce this right. They are in express terms forbidden to make
any regulation that shall impair it. But there the prohibition
stops. And according to the settled rules of construction for all
written instruments, the prohibition being confined to laws inju-
94
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
rious to the right, the power to pass laws to support and enforce
it, is necessarily implied. And the words of the article which
direct that the fugitive "shall be delivered up," seem evidently-
designed to impose it as a duty upon the people of the several
states to pass laws to carry into execution, in good faith, the com-
pact into which they thus solemnly entered with each other. The
Constitution of the United States, and every article and clause in
it, is a part of the law of every state in the Union ; and is the
paramount law. The right of the master, therefore, to seize his
fugitive slave, is the law of each state • and no state has the
power to abrogate or alter it. And why may not a state protect
a right of property, acknowledged by its own paramount law ?
Besides, the laws of the different states, in all other cases, con-
stantly protect the citizens of other states in their rights of pro-
perty, when it is found within their respective territories ; and no
one doubts their power to do so. And in the absence of any ex-
press prohibition, I perceive no reason for establishing, by impli-
cation, a different rule in this instance ; where, by the national
compact, this right of property is recognised as an existing right
in every state of the Union.
I do not speak of slaves whom their masters voluntarily take
into a non-slaveholding state. That case is not before us. I
speak of the case provided for in the Constitution ; that is to
say, the case of a fugitive who has escaped from the service of
his owner, and who has taken refuge and is found in another
state.
Moreover, the clause of the Constitution of which we are
speaking, does not purport to be a distribution of the rights of
sovereignty by which certain enumerated powers of government
and legislation are exclusively confided to the United States. It
does not deal with that subject. It provides merely for the rights
of individual citizens of different states, and places them under
the protection of the general government ; in order more effectu-
ally to guard them from invasion by the states. There are other
clauses in the Constitution in which other individual rights are
provided for and secured in like manner ; and it never has been
suggested that the states could not uphold and maintain them,
because they were guarantied by the Constitution of the United
States. On the contrary, it has always been held to be the duty
JANUARY TERM, 1842.
95
[Prigg v. The Commonwealth of Pennsylvania.]
of the states to enforce them; and the action of the general
government has never been deemed necessary except to resist
and prevent their violation.
Thus, for example, the Constitution provides that no state shall
pass any law impairing the obligation of contracts. This, like
the right in question, is an individual right, placed under the
protection of the general government. And in order to secure it,
Congress have passed a law authorizing a writ of error to the
Supreme Court, whenever the right thus secured to the individual
is drawn in question, and denied to him in a State Court. And
all state laws impairing this right are admitted to be void. Yet
no one has ever doubted that a state may pass laws to enforce
the obligation of a contract, and may give to the individual the
full benefit of the right so guarantied to him by the Constitution,
without waiting for legislation on the part of Congress.
Why may not the same thing be done in relation to the indivi-
dual right now under consideration ?
Again. The Constitution of the United States declares that
the citizens of each state shall be entitled to all the privileges and
immunities of citizens in the several states. And although these
privileges and immunities, for greater safety, are placed under the
guardianship of the general government ; still the states may by
their laws and in their tribunals protect and enforce them. They
have not only the power, but it is a duty enjoined upon them by
this provision in the Constitution.
The individual right now in question, stands on the same
grounds, and is given by similar words, and ought to be governed
by the same principles. The obligation to protect rights of this
description is imposed upon the several states as a duty which
they are bound to perform ; and the prohibition extends to those
laws only which violate the right intended to be secured.
I cannot understand the rule of construction by which a posi-
tive and express stipulation for the security of certain individual
rights of property in the several states, is held to imply a prohi-
bition to the states to pass any laws to guard and protect them.
The course pursued by the general government after the
adoption of the Constitution, confirms my opinion as to its true
construction.
No law was passed by Congress to give a remedy for this right,
96
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
until nearly four years after the Constitution went into operation.
Yet, during that period of time, the master was undoubtedly en-
titled to take possession of his property wherever he might find
it ; and the protection of this right was left altogether to the state
authorities. In attempting to exercise it, he was continually
liable to be resisted by superior force ; or the fugitive might be
harboured in the house of some one who would refuse to deliver
him. And if a state could not authorize its officers, upon the
master's application, to come to his aid, the guarranty contained
in the Constitution was of very little practical value. It is true
he might have sued for damages. But as he would, most com-
monly, be a stranger in the place where the fugitive was found,
he might not be able to learn even the names of the wrongdoers ;
and if he succeeded in discovering them, they might prove to be
unable to pay damages. At all events, he would be compelled
to encounter the costs and expenses of a suit, prosecuted at a dis-
tance from his own home ; and to sacrifice perhaps the value of
his property in endeavouring to obtain compensation.
This is not the mode in which the Constitution intended to
guard this important right ; nor is this the kind of remedy it in-
tended to give. The delivery of the property itself — its prompt
and immediate delivery — is plainly required, and was intended to
be secured.
Indeed, if the state authorities are absolved from all obligation
to protect this right, and may stand by and see it violated without
an effort to defend it, the act of Congress of 1793 scarcely de-
serves the name of a remedy. The state officers mentioned in the
law are not bound to execute the duties imposed upon them by
Congress, unless they choose to do so, or are required to do so by
a law of the state ; and the state legislature has the power, if it
thinks proper, to prohibit them. The act of 1793, therefore, must
depend altogether for its execution upon the officers of the United
States named in it. And the master must take the fugitive, after
he has seized him, before a judge of the District or Circuit Court,
residing in the state, and exhibit his proofs, and procure from the
judge his certificate of ownership, in order to obtain the protec-
tion in removing his property which this act of Congress pro-
fesses to give.
Now, in many of the states there is but one district judge, and
JANUARY TERM, 1842.
97
[Prigg v. The Commonwealth of Pennsylvania.]
there are only nine states which have judges of the Supreme
Court residing within them. The fugitive will frequently be
found by his owner in a place very distant from the residence of
either of these judges; and would certainly be removed beyond his
reach, before a warrant could be procured from the judge to
arrest him, even if the act of Congress authorized such a warrant.
But it does not authorize the judge to issue a warrant to arrest
the fugitive ; but evidently relied on the state authorities to pro-
tect the owner in making the seizure. And it is only when the
fugitive is arrested and brought before the judge that he is
directed to take the proof, and give the certificate of ownership.
It is only necessary to state the provisions of this law in order to
show how ineffectual and delusive is the remedy provided by
Congress, if state authority is forbidden to come to its aid.
But it is manifest from the face of the law, that an effectual
remedy was intended to be given by the act of 1793. It never
designed to compel the master to encounter the hazard and ex-
pense of taking the fugitive in all cases, to the distant residence
of one of the judges of the Courts of the United States ; for it
authorized him, also, to go before any magistrate of the county,
city, or town corporate wherein the seizure should be made.
And Congress evidently supposed that it had provided a tribunal
at the place of the arrest, capable of furnishing the master with
the evidence of ownership to protect him more effectually from
unlawful interruption. So far from regarding the state authorities
as prohibited from interfering in cases of this description, the Con-
gress of that day must have counted upon their cordial co-opera-
tion. They legislated with express reference to state support.
And it will be remembered, that when this law was passed, the
government of the United States was administered by the men
who had but recently taken a leading part in the formation of the
Constitution. And the reliance obviously placed upon state au-
thority for the purpose of executing this law, proves that the con-
struction now given to the Constitution by the Court had not
entered into their minds. Certainly, it is not the construction
which it received in the states most interested in its faithful exe-
cution. Maryland, for example, which is substantially one of the
parties to this case, has continually passed laws, ever since the
adoption of the Constitution of the United States, for the arrest
13 I
98 SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
of fugitive slaves from other states as well as her own. Her offi-
cers are by law required to arrest them when found within her
territory ; and her magistrates are required to commit them to the
public prison, in order to keep them safely until the master has
an opportunity of reclaiming them. And if the owner is not
known, measures are directed to be taken by advertisement to
apprize him of the arrest ; and if known, personal notice to be
given. And as fugitives from the more southern states, when
endeavouring to escape into Canada, very frequently pass through
her territory, these laws have been almost daily in the course of
execution in some part of the state. But if the states are forbid-
den to legislate on this subject, and the power is exclusively in
Congress, then these state laws are unconstitutional and void; and
the fugitive can only be arrested, according to the provisions of
the act of Congress. By that law the power to seize is given to
no one but the owner, his agent, or attorney. And if the officers
of the state are not justified in acting under the state laws, and
cannot arrest the fugitive, and detain him in prison without
having first received an authority from the owner; the territory
of the state must soon become an open pathway for the fugitives
escaping from other states. For they are often in the act of passing
through it by the time that the owner first discovers that they
have absconded ; and in almost every instance, they would be
beyond its borders (if they were allowed to pass through without
interruption) before the master would be able to learn the road
they had taken.
I am aware that my brethren of the majority do not contem-
plate these consequences; and do not suppose that the opinion
they have given will lead to them. And it seems to be supposed
that laws nearly similar to those I have mentioned, might be
passed by the state in the exercise of her powers over her internal
police, and by virtue of her right to remove from her territory
disorderly and evil-disposed persons, or those who, from the na-
ture of her institutions, are dangerous to her peace and tranquil-
lity. But it would be difficult perhaps to bring all the laws I
have mentioned within the legitimate scope of the internal
powers of police. The fugitive is not always arrested in order
to prevent a dangerous or evil-disposed person from remaining in
her territory. He is himself most commonly anxious to escape
JANUARY TERM, 1842.
99
[Prigg v. The Commonwealth of Pennsylvania.]
from it ; and it often happens that he is seized near the borders
of the state when he is endeavouring to leave it, and is brought
back and detained until he can be delivered to his owner. He
may sometimes be found travelling peaceably along the public
highway on his road to another state, in company with and under
the protection of a white man who is abetting his escape. And
it could hardly be maintained that the arrest and confinement of
the fugitive in the public prison, under such circumstances, until
he could be delivered to his owner, was necessary for the internal
peace of the state; and therefore a justifiable exercise of its powers
of police.
It has not heretofore been supposed necessary, in order to jus-
tify these laws, to refer them to such questionable powers of in-
ternal and local police. They were believed to stand upon surer
and firmer grounds. They were passed, not with reference merely
to the safety and protection of the state itself; but in order to
secure the delivery of the fugitive slave to his lawful owner.
They were passed by the state in the performance of a duty
believed to be enjoined upon it by the Constitution of the United
States.
It is true that Maryland as well as every other slaveholding
state, has a deep interest in the faithful execution of the clause in
question. But the obligation of the compact is not confined to
them. It is equally binding upon the faith of every state in the
Union; and has heretofore, in my judgment, been justly regarded
as obligatory upon all.
I dissent therefore, upon these grounds, from that part of the
opinion of the Court which denies the obligation and the right of
the state authorities to protect the master, when he is endeavour-
ing to seize a fugitive from his service, in pursuance of the right
given to him by the Constitution of the United States ; — provided
the state law is not in conflict with the remedy provided by Con-
gress.
Mr. Justice Thompson.
I concur in the judgment given by the Court in this case. But
not being able to yield my assent to all the doctrines embraced
in the opinion, I will very briefly state the grounds on which my
judgment is placed.
100 SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
The provision in the Constitution upon which the present
question arises is as follows : " No person held to service or
labour in one state, under the laws thereof, escaping into another,
shall in consequence of any law or regulation therein, be dis-
charged from such service or labour, but shall be delivered up
on claim of the party to whom such service or labour may be
due." Art. 4. sec. 2. We know, historically, that this provision
was the result of a compromise between the slaveholding and
non-slaveholding states; and it is the indispensable duty of all to
carry it faithfully into execution according to its real object and
intention.
This provision naturally divides itself into two distinct consi-
derations. First, the right affirmed ; and secondly, the mode and
manner in which that right is to be asserted and carried into
execution.
The right is secured by the Constitution, and requires no law
to fortify or strengthen it. It affirms, in the most unequivocal
manner, the right of the master to the service of his slave, ac-
cording to the laws of the state under which he is so held. And
it prohibits the states from discharging the slave from such ser-
vice by any law or regulation therein.
The second branch of the provision, in my judgment, requires
legislative regulations pointing out the mode and manner in
which the right is to be asserted. It contemplates the delivery
of the person of the slave to the owner ; and does not leave the
owner to his ordinary remedy at law, to recover damages on a
refusal to deliver up the property of the owner. Legislative
provision, in this respect, is essential for the purpose of preserving
peace and good order in the community. Such cases, in some
parts of our country, are calculated to excite feelings which, if
not restrained by law, might lead to riots and breaches of the
peace. This legislation, I think, belongs more appropriately to
Congress than to the states, for the purpose of having the regu-
lation uniform throughout the United States, as the transporta-
tion of the slave may be through several states; but there is
nothing in the subject-matter that renders state legislation unfit.
It is no objection to the right of the states to pass laws on the
subject, that there is no power anywhere given to compel them
to do it. Neither is there to compel Congress to pass any law
JANUARY TERM, 1842.
101
[Prigg v. The Commonwealth of Pennsylvania.]
on the subject. The legislation must be voluntary in both ; and
governed by a sense of duty. But I cannot concur in that part of
the opinion of the Court, which asserts that the power of legisla-
tion by Congress is exclusive; and that no state can pass any law
to carry into effect the constitutional provision on this subject;
although Congress had passed no law in relation to it. Congress,
by the act of 1793, has legislated on the subject ; and any state
law in conflict with that, would be void, according to the provi-
sions of the Constitution, which declares, that the laws of the
United States, which shall be made in pursuance of the Consti-
tution, shall be the supreme law of the land, any thing in the
laws of any state to the contrary notwithstanding. This provi-
sion meets the case of a conflict between congressional and state
legislation; and implies that such cases may exist, growing out of
the concurrent powers of the two governments. The provision
in the Constitution under consideration, is one under which such
conflicting legislation may arise; and harmony is produced by mak-
ing the state law yield to that of the United States. But to assert
that the states cannot legislate on the subject at all, in the absence
of all legislation by Congress, is, in my judgment, not warranted
by any fair and reasonable construction of the provision. There
is certainly nothing in the terms used in this article, or in the
nature of the power to surrender the slave, that makes legislation
by Congress exclusive. And if, as seems to be admitted, legis-
lation is necessary to carry into effect the object of the Constitu-
tion, what becomes of the right where there is no law on the
subject ? Should Congress repeal the law of 1793, and pass no
other law on the subject, I can entertain no doubt that state
legislation, for the purpose of restoring the slave to his master,
and faithfully to carry into execution the provision of the Consti-
tution, would be valid. I can see nothing in the provision itself,
or discover any principle of sound public policy, upon which
such a law would be declared unconstitutional and void. The
Constitution protects the master in the right to the possession and
service of his slave, and of course makes void all state legisla-
tion impairing that right; but does not make void state legisla-
tion in affirmance of the right. I forbear enlarging upon this
question, but have barely stated the general grounds upon which my
opinion rests; and principally to guard against the conclusion, that.
I 2
102 SUPREME COURT.
[Prigg o. The Commonwealth of Pennsylvania.]
by my silence, I assent to the doctrine that all legislation on this
subject is vested exclusively in Congress; and that all state legis-
lation, in the absence of any law of Congress, is unconstitutional
and void.
Mr. Justice Baldwin,
Concurred with the Court in reversing the judgment of the
Supreme Court of Pennsylvania, on the ground that the act of the
legislature was unconstitutional; inasmuch as the slavery of the
person removed was admitted, the removal could not be kid-
napping. But he dissented from the principles laid down by the
Court as the grounds of their opinion.
Mr. Justice Wayne.
I concur altogether in the opinion of the Court, as it has been
given by my brother Story.
In that opinion it is decided :
1. That the provision in the second section of the fourth article
of the Constitution, relative to fugitives from service or labour,
confers upon the owner of a fugitive slave the right, by himself
or his agent, to seize and arrest, without committing a breach of
the peace, his fugitive slave, as property, in any state of the
Union ; and that no state law is constitutional which interferes
with such right.
2. That the provision authorizes and requires legislation by
Congress to guard that right of seizure and arrest against all
state and other interference, to make the delivery of fugitive
slaves more effectual when the claims of owners are contested ;
and to insure to owners the unmolested transportation of fugitive
slaves, through any of the states, to the state from which they
may have fled.
3. That the legislation by Congress upon the provision, as the
supreme law of the land, excludes all state legislation upon the
same subject; and that no state can pass any law or regulation,
or interpose such as may have been a law or regulation when
the Constitution of the United States was ratified, to superadd
to, control, qualify, or impede a remedy, enacted by Congress,
for the delivery of fugitive slaves to the parties to whom their
service or labour is due.
JANUARY TERM, 1842.
103
[Prigg v. The Commonwealth of Pennsylvania.]
4. That the power of legislation by Congress upon the provi-
sion is exclusive; and that no state can pass any law as a remedy
upon the subject, whether Congress had or had not legislated
upon it.
5. That the act of Congress of the 12th February, 1793, en-
titled "An act, respecting fugitives from justice, and persons es-
caping from the service of their masters," gives a remedy ; but
does not exhaust the remedies, which Congress may legislate
upon the subject.
6. That the points so decided are not intended to interfere in
any way, nor do they interfere in any manner, with the police
power in the states, to arrest and imprison fugitive slaves, to
guard against their misconduct and depredations ; or to punish
them for offences and crimes committed in the states to which
they may have fled.
7. These points being so decided and applied to the case be-
fore the Court, it follows that the law of Pennsylvania, upon
which the plaintiff is indicted is unconstitutional ; and that the
judgment given by the Supreme Court of Pennsylvania against
the plaintiff must be reversed.
All of the judges of the Court concur in the opinion that the
law under which the plaintiff in error was indicted is unconsti-
tutional. All of them concur, also, in the declaration, that the
provision in the Constitution was a compromise between the
slaveholding, and the non-slaveholding states, to secure to the
former fugitive slaves as property. All of the members of the
Court, too, except my brother Baldwin, concur in the opinion
that legislation by Congress, to carry the provision into execution,
is constitutional ; and he contends that the provision gives to the
owners of fugitive slaves all the rights of seizure and removal
which legislation could give ; but he concurs in the opinion, if
legislation by Congress be necessary, that the right to legislate is
exclusively in Congress.
There is no difference, then, among the judges as to the rever-
sal of the judgment; none in respect to the origin and object of
the provision, or the obligation to exercise it. But ditlerences do
exist as to the mode of execution. Three of the judges have ex-
pressed the opinion, that the states may legislate upon the provi-
sion, in aid of the object it was intended to secure ; and that
104
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
such legislation is constitutional, when it does not conflict with
the remedy which Congress may enact.
I believe that the power to legislate upon the provision is ex-
clusively in Congress.
The provision is, that " No person held to service or labour in
one state, under the laws thereof, escaping into another, shall, in
consequence of any law or regulation therein, be discharged from
such service or labour, but shall be delivered up on claim of the
party to whom such service or labour is due."
The clause contains four substantive declarations; or two con-
ditions, a prohibition, and a direction.
First, The fugitive must owe service or labour under the law
of the state from which he has escaped ; second, he must have
fled from it. The prohibition is, that he cannot be discharged
from service, in consequence of any law or regulation of the state
in which he may be ; and the direction is affirmative of an obli-
gation upon the states, and declarative of a right in the party to
whom the service or labour of a fugitive is due.
My object, and the only object which I have in view, in what
I am about to say, is, to establish the position that Congress has
the exclusive right to legislate upon this provision of the Consti-
tution. I shall endeavour to prove it by the condition of the
states when the Constitution was formed; by references to the
provision itself; and to the Constitution generally.
Let it be remembered, that the conventioners who formed the
Constitution, were the representatives of equal sovereignties. That
they were assembled to form a more perfect union than then ex-
isted between the states under the confederacy. That they co-
operated to the same end ; but that they were divided into two
parties, having antagonist interests in respect to slavery.
One of these parties, consisting of several states, required as a
condition, upon which any constitution should be presented to
the states for ratification, a full and perfect security for their slaves
as property, when they fled into any of the states of the Union.
The fact is not more plainly stated by me than it was put in the
convention. The representatives from the non-slaveholding
states assented to the condition. The provision under review
was proposed and adopted by the unanimous vote of the conven-
tion. It, with an allowance of a certain portion of slaves with
JANUARY TERM, 1842.
105
[Prigg v. The Commonwealth of Pennsylvania.]
the whites, for representative population in Congress, and the im-
portation of slaves from abroad, for a number of years; were the
great obstacles in the way of forming a constitution. Each of
them was equally insisted upon by the representatives from the
slaveholding states; and without all of them being provided for,
it was well understood, that the convention would have been
dissolved, without a constitution being formed. I mention the
facts as they were. They cannot be denied. I have nothing to
do, judicially, with what a part of the world may think of the atti-
tude of the different parties upon this interesting topic. I am
satisfied with what was done ; and revere the men and their mo-
tives for insisting, politically, upon what was done. When the
three points relating to slaves had been accomplished, every im-
pediment in the way of forming a constitution was removed.
The agreement concerning them was called, in the convention,
a compromise. The provision in respect to fugitives from service
or labour, was called a guarantee of a right of property in fugitive
slaves, wherever they might be found in the Union. The Con-
stitution was presented to the states for adoption, with the under-
standing that the provisions in it relating to slaves were a com-
promise and guarantee ; and with such an understanding in every
state, it was adopted by all of them. Not a guarantee merely
in the professional acceptation of the word, but a great national
engagement, in which the states surrendered a sovereign right,
making it a part of that instrument, which was intended to make
them one nation, within the sphere of its action. The provision,
then, must be interpreted by those rules of construction assented
to by all civilized nations, as obligatory in ascertaining the rights
growing out of these agreements. We shall see, directly, how these
rules bear upon the question of the power of legislation upon this
subject being exclusively in Congress; and why the states are
excluded from legislating upon it.
The prohibition upon the states to discharge fugitive slaves is
absolute.
The provision, however, does not contain, in detail, the manner
of asserting the right it was meant to secure. Nor is there in it
any expressed power of legislation ; nor any expressed prohibi-
tion of state legislation. But it does provide, that delivery of a
fugitive shall be made on the claim of the owner — that the fugi-
14
106
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
tive slave owing service and labour in the state from which he
fled, and escaping therefrom, shall be decisive of the owner's right
to a delivery. It does not, however, provide the mode of proving
that service and labour is due in a contested case, nor for any
such evidence of the right, when it has been established, as will
insure to an owner the unmolested transportation of the fugitive,
through other states, to the state from which he fled. But the
right to convey is the necessary consequence of a right to deli-
very. The latter would be good for nothing without the former.
Proof of ownership gives both, if it gives either or any thing ; and
yet the right might be in the larger number of instances unavail-
ing, if it were not certified by some official document, that the
right had been established. A certificate from an officer author-
ized to inquire into the facts, is the easiest way to secure the
right to its contemplated intent. It was foreseen that claims
would be made, which would be contested. Some tribunal was
necessary to decide them, and to authenticate the fact that a claim
had been established. Without such authentication, the contest
might be renewed in other tribunals of the state in which the
fact had been established ; and in those of the other states through
which the fugitive might be carried on his way to the state from
which he fled. Such a certificate too, being required, protects
persons who are not fugitives from being seized and transported.
It has the effect of securing the benefit of a lawful claim ; and of
preventing the accomplishment of one that is false. Such a cer-
tificate, to give a right to transport a fugitive slave through
another state, a state cannot give. Its operation would be con-
fined to its own boundaries ; and would be useless to assert the
right in another sovereignty. This analysis of the provision is
given to show that legislation was contemplated to carry it fully
into effect, in many of the cases that might occur ; and to prevent
its abuse when attempts might be made to apply it to those who
were not fugitives. And it brings me to the point I have as-
serted, that Congress has the exclusive right to legislate upon the
provision.
Those who contend that the states may legislate in aid of the
object of the provision, admit that Congress can legislate to the full
extent to carry it into execution. There is, then, no necessity for
the states to legislate. This is a good reason why they should not
JANUARY TERM, 1842.
107
[Prigg v. The Commonwealth of Pennsylvania.]
legislate ; and that it was intended that they should not do so.
For legislation by Congress makes the mode of asserting the
right uniform throughout the Union ; and legislation by the
states would be as various as the separate legislative will and
policy of the different states might choose to make it. Certainly
such an interest as the Constitution was intended to secure, we
may well think the framers of the Constitution intended to pro-
vide for by a uniform law. I admit, however, that such con-
siderations do not necessarily exclude the right of the states to
legislate. The argument in favour of the right, is, that the states
are not in express terms prohibited from legislating, and that the
exclusion is not necessarily implied. I further admit, if it be not
necessarily implied, that the right exists. Such is the rule, in re-
spect to the right of legislation by the states, in all cases under
the Constitution when the question of a right to legislate is
merely such.
My first remark is, and I wish it to be particularly observed,
that the question is not one only of the right of the states to legis-
late in aid of this provision, unconnected with other considera-
tions bearing directly upon the question. The true question in
the case is, by what rules shall the compromise or guarantee be
construed ■ so that the obligations and rights of the states under
the provision may be ascertained and secured.
It is admitted, that the provision raises what is properly termed
a perfect obligation upon all of the states to abstain from doing
any thing which may interfere with the rights secured. Will this
be so, if any part of what may be necessary to discharge the ob-
ligation is reserved by each state, to be done as each may think
proper ? The obligation is common to all of them, to the same
extent. Its object is to secure the property of some of the states,
and the individual rights of their citizens in that property. Shall,
then, each state be permitted to legislate in its own way, accord-
ing to its own judgment, and their separate notions, in wh
manner the obligation shall be discharged to those states to
which it is due? To permit some of the states to say to the
others, how the property included in the provision was to be
secured by legislation, without the assent of the latter, would cer-
tainly be, to destroy the equality and force of the guarantee, and
the equality of the states by which it was made. That was
108 SUPREME COURT.
\
[Prigg v. The Commonwealth of Pennsylvania.]
not anticipated by the representatives of the slaveholding states
in the convention, nor could it have been intended by the
framers of the Constitution.
Is it not more reasonable to infer, as the states were forming a
government for themselves, to the extent of the powers conceded
in the Constitution, to which legislative power was given to make
all laws necessary and proper to carry into execution all powers
vested in it — that they meant that the right for which some of the
states stipulated, and to which all acceded, should, from the pecu-
liar nature of the property in which only some of the states were
interested — be carried into execution by that department of the
general government in which they were all to be represented,
the Congress of the United States.
But is not this power of legislation by the states, upon this
provision, a claim for each to use its discretion in interpreting the
manner in which the guarantee shall be fulfilled ?
Are there no rules of interpretation, founded upon reason and
nature, to settle this question, and to secure the rights given by
the provision, better than the discretion of the parties to the obli-
gation ? Has not experience shown that those rules must be
applied to conventions between nations, in order that justice may
be done ? All civilized nations have consented to be bound
by them ; and they are a part of the laws of nations. Is not one
of those rules, the maxim that neither one or the other of the in-
terested or contracting powers has a right to interpret his act or
treaty at his pleasure ? Such is the rule in respect to the treaties
and conventions of nations foreign to each other. It applies with
equal necessity and force to states united in one general govern-
ment. Especially to states making a provision in respect to pro-
perty peculiar to some of- them, which has become so interwoven
with their institutions and their representation in the general
government of all of them, that the right to such property must
be maintained and guarded, in order to preserve their separate
existence, and to keep up their constitutional representation in
Congress. Such cannot be the case, unless there is uniformity in
the law for asserting the right to fugitive slaves ; and if the states
can legislate, as each of them may think it should be done, a
remedy, by which the right of property in fugitive slaves is to be
ascertained and finally concluded. Nor does it matter, that the
JANUARY TERM, 1842.
109
[Prigg v. The Commonwealth of Pennsylvania.]
rule to which I have adverted as being exclusive of the right of
the states to legislate upon the provision, does not appear in it.
It is exactly to such cases that the rule applies, and it must be so
applied, unless the contrary has been expressly provided. The
mode of its application is as authoritative as the rule. The rule,
too, applies to the provision without any conflict with the other
rule that the states may legislate in all cases, when they are not
expressly or impliedly prohibited by the Constitution. The latter
rule is in no way trenched upon by excluding the states from
legislating in this case. This provision is the only one in the
Constitution in which a security for a particular kind of property
is provided : provided, too, expressly against the interference by
the states in their sovereign character. The surrender of a sove-
reign right carries with it all its incidents. It differs from yield-
ing a participation to another government, in a sovereign right.
In the latter, both may have jurisdiction. The state yielding
the right, retaining jurisdiction to the extent of doing nothing
repugnant to the exercise of the right by the government to
which it has been yielded.
But it is said, all that is contended for, is, that the states may
legislate to aid the object, and that such legislation will be consti-
tutional if it does not conflict with the remedies which Congress
may enact. This is a cautious way of asserting the right in
the states, and it seems to impose a limitation which makes it un-
objectionable. But the reply to it is, that the right to legislate a
remedy, implies so much indefinite power over the subject, and
such protracted continuance, as to the mode of finally determin-
ing whether a fugitive owes service and labour, that the require-
ments of the remedy, without being actually in conflict with the
provision or the enactments of Congress might be oppressive to
those most interested in the provision, by interposing delays and
expenses more costly than the value of the fugitive sought to be
reclaimed. Ordinarily, and when rightly understood, it is true
that the abuse of a thing is no argument against its correctness or
its use ; but that suggestion can only be correctly made in cases
in support of a right or power abstractly and positively right, and
which has been abused under the pretence of using it : or where
the proper use has been mistaken. In matters of government,
however, a power liable to be abused is always a good reason
110 SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
for withholding it. It is the reason why the powers of the
United States, under the Constitution, are so cautiously given —
why the express prohibitions upon the states not to legislate in
certain cases were expressed — why the limitation upon the for-
mer, that the powers not granted are reserved to the states, as it
is expressed in the amendments to the Constitution. But in
truth, any additional legislation in this case by a state, acting as a
remedy, in aid of the remedy given by the Constitution and by
Congress, would be, in practice, in conflict with the latter, if it
be a process differing from it ; though it might make the mode
of recovering a fugitive easier than the former, and much more
so, when it made it more difficult. The right to legislate a
remedy implies the ability to do either ; and it is because it does
so, and may be the latter, that I deny all right in the states to
legislate upon this subject ; unless it be to aid, by mere ministe-
rial acts, the protection of an owner's right to a fugitive slave —
the prevention of all interference with it by the officers of a state,
or its citizens, or an authority to its magistrates to execute ihe
law of Congress — and such legislation over fugitives as may be
strictly of a police character.
Admit the states to legislate remedies in this case, besides such
as are given by Congress, and there will be no security for the
delivery of fugitive slaves in half of the states of the Union.
Such was the case when the Constitution was adopted. The
states might legislate in good faith, according to their notions how
such a right of property should be tried. They have already
done so, and the act of Pennsylvania, now under consideration,
shows, that the assertion of a right to a fugitive slave is burdened
by provisions entailing expenses disproportioned to his value ;
and that it is only to be asserted, by arraying against the claim
all of those popular prejudices which, under other circumstances,
would be proper feelings against slavery.
But the propriety of the rule of interpretation, which I have
invoked to exclude the states from legislating upon this provi-
sion of the Constitution, becomes more obvious, when it is re-
membered that the provision was not intended only to secure
the property of individuals, but that through their rights, that
the institutions of the states should be preserved, so long as any
one of the states chose to continue slavery as a part of its policy.
JANUARY TERM, 1842.
ill
[Prigg v. The Commonwealth of Pennsylvania.]
The subject has usually been argued as if the rights of indivi-
duals only were intended to be secured, and as if the legislation
by the states would only act upon such rights.
The framers of the Constitution did not act upon such narrow
grounds. They were engaged in forming a government for all of
the states; by concessions of sovereign rights from all, without
impairing the actual sovereignty of any one, except within the
sphere of what was conceded. One great object was, that all
kinds of property, as well that which was common in all of the
states, as that which was peculiar to any of them, should be
protected in all of the states, as well from any interference with
it by the United States, as by the states. Experience had shown
that under the confederacy, the reclamation of fugitive slaves
was embarrassed and uncertain, and that they were yielded to by
the states only from comity. It was intended that it should be
no longer so. The policy of the different states, some of them
contiguous, had already become marked and decided upon the
subject of slavery. There was no doubt it would become more
so. It was foreseen,*unless the delivery of fugitive slaves was
made a part of the Constitution, and that the right of the states
to discharge them from service was taken away, that some of
the states would become the refuge of runaways; and, of course,
that in proportion to the facility and certainty of any state being
a refuge, so would the right of individuals, and the institutions
of the slaveholding states, be impaired. The latter were bound,
when forming a general government with the other states, under
which there was to be a community of rights and privileges for
all citizens in the several states, to protect that property of their
citizens which was essential to the preservation of their state con-
stitutions. If this had not been done, all of the property of the
citizens would have been protected in every state, except that
which was the most valuable in a number of them. In such a
case, the states would have become members of the Union upon
unequal terms. Besides, the property of an individual is not the
less his, because it is in another state than that in which he lives.
It continues to be his, and forms a part of the wealth of his state.
The provision, then, in respect to fugitive slaves, only compre-
hended within the general rule a species of property not within
it before. By doing so, the right of individuals, and that of the
112
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
states in which slavery was continued, were preserved. It re-
mained in the states as a part of that wealth, from which contri-
butions were to be raised by taxes laid with the consent of the
owners, to meet, the wants of the state as a body politic. If this be
so, upon what principle shall the states act by their legislation upon
property, which is national as well as individual ; and direct the
mode when it is within their jurisdiction, without the consent of
the owners, and without the fault of the states where the owners
reside, how the right of property should be ascertained and
determined. The case of a fugitive slave is not like that of a
contest for other property, to be determined between two claim-
ants by the remedy given by the tribunals of the state where the
property may be. It is not a controversy between two persons
claiming the right to a thing, but the assertion by one person of
a right of property in another, to be determined upon principles
peculiar to such relation. If the provision had not been intro-
duced into the Constitution, the states might have adjudged the
right in the way it pleased ; but having surrendered the right to
discharge, they are not now to be allowed to assume a right to
legislate, to try the obligation of a fugitive to servitude, in any
other way than in conformity to the principles peculiar to the
relation of master and slave. Their legislation, then, in the way
of remedy, would bear upon state as well as individual rights ;
and I am sure, when the Constitution was formed, the states
never intended to give any such right to each other. If it has
such an effect, I think I may rightly conclude that legislation in
the case before us is forbidden to the states.
But I have a further reason for the conclusion to which I have
come upon this point ; to which I cannot see that an answer can
be given.
The provision contemplates, besides the right of seizure by the
owner, that a claim may be made, when a seizure has not been
effected, or afterwards, if his right shall be contested. That the
claim shall be good, upon the showing by the claimant that the
person charged as a fugitive owes service or labour, under the
laws of the state from which he fled.
The prohibition in the provision, is, that he shall not be "dis-
charged, in consequence of any law or regulation of a state"
where he may be. If then, in a controverted case, a person
JANUARY TERM, 1842.
113
[P/igg v. The Commonwealth of Pennsylvania.]
charged as a fugitive, shall be discharged under a remedy legis-
lated by a state to try the fact of his owing service or labour, is
he not discharged under a law or regulation of a state ? It is no
answer to this question, to say, that the discharge was not made
in virtue of any law discharging the fugitive from servitude ; and
that the discharge occurred only from the mode of trial to ascer-
tain if he owed service and labour. For that is to assume, that
the provision only prevented discharges from being made by the
states, by enactment or law, declaring that fugitive slaves might
be discharged. The provision will not admit of such an interpre-
tation. Nor is it any answer to say, that state regulations to
ascertain whether a fugitive owes service or labour, are distin-
guishable from such as directly or by construction would lead
to his discharge ; for if a discharge be made under one or the
other — whether the discharge be right or wrong, it is a discharge
under the regulation of a state.
I understand the provision to mean ; and when its object and the
surrender by the states of the right to discharge are kept in mind,
its obvious meaning to every one must be, that the states are not
only prohibited from discharging a fugitive from service by a law,
but that they shall not make or apply regulations to try the ques-
tion of the fugitive owing service. The language of the provision,
is, " No person, &c, shall in consequence of any law or regulation
therein," be discharged from such service or labour. The words
" in consequence," meaning the elfect of a cause — certainly em-
brace regulations to try the right of property, as well as laws,
directly discharging a fugitive from service.
If this be not so, the states may regulate the mode of an owner's
seizing a fugitive slave, prohibiting it from being done except by
warrant, and by an officer ; thus denying to an owner the right to
use a casual opportunity to repossess himself of this kind of pro-
perty, which there is a right to do, in respect to all other kinds of
property, where not in the possession of some one else. It may
regulate the quantity and quality of the proof to establish the
right of an owner to a fugitive, and give compensatory and
punitory damages against a claimant, if his right be not established
according to such proof. It might limit the trial to particular
times and Courts; give appeals from one to other Courts; and
protract the ultimate decision, until the value in controversy
15 k 2
114
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
was exceeded by the cost, of establishing it. Such rights of legis-
lation in the states to try a right of property in a fugitive slave,
are surely inconsistent with that security which Judge Iredell
told the people of North Carolina, in the convention, that the Con-
stitution gave to them for their slaves when they fled into other
states. Speaking of this clause of the Constitution, he says, " In
some of the northern states, they have emancipated all of their
slaves. If any one of our slaves go there, and remain there a
certain time, they would, by the present laws, be entitled to their
freedom, so that their masters could not get them again. This
would be extremely prejudicial to the inhabitants of the southern
states; and, to prevent it, this clause is inserted in the Constitu-
tion." To the same purpose, and with more positiveness, Charles
Cotesworth Pinckney said to the people of South Carolina, in the
convention of that state, "We have obtained a right to recover
our slaves in whatever part of America they may take refuge ;
which is a right we had not before."
But further, does not the language of this provision in the pre-
cise terms used, " shall not be discharged from such service or
labour," show, that the states surrendering the right to discharge,
meant to exclude themselves from legislating a mode of trial,
which, from the time it would take, would be a qualified or tem-
porary discharge to the injury of the owner ? Would not a post-
ponement of the trial of a fugitive owing service or labour, for one
month, be a loss to the owner of his service, equivalent to a dis-
charge for that time. And if a state can postpone by legislation
the trial for one month, may it not do so for a longer time? And
whether it be for a longer or a shorter time, is it not a discharge
from service, for whatever time it may be ? It is no answer to
this argument, to say, that time is necessarily involved in the
prosecution of all rights. The question here is not as to a time
being more or less necessary — but as to the right of a state by
regulations to try the obligation of a fugitive to service or labour,
to fix in its discretion the time it may take.
The subject might be further discussed and illustrated by
arguments equally cogent with those already given. But I for-
bear. For the foregoing reasons, in addition to those given in
the opinion of the Court, I am constrained to come to the con-
clusion, that the right of legislating upon that clause in the Con-
JANUARY TERM, 1842.
115
[Prigg v. The Commonwealth of Pennsylvania.]
stitution, preventing the states from discharging fugitive slaves,
is exclusively in the Congress of the United States. I am as little
inclined as any one can be, to deny, in a doubtful case, a right
of legislation in the states ; but I cannot concede that it exists
under the Constitution in a case relating to the property of some
of the states in which the others have no interest ; and whose
legislators, from the nature of the subject, and the human mind
in relation to it, cannot be supposed to be best fitted to secure the
right guarantied by the Constitution.
I had intended to give an account of the beginning and pro-
gress of the legislation of the states upon this subject; but my
remarks are already so much extended, that I must decline doing
so. It would have shown, perhaps, as much as any other in-
stance, how a mistaken, doubtful, and hesitating exercise of
power in the commencement, becomes, by use, a conviction of its
correctness. It would also have shown that the legislation of
the states in respect to fugitive slaves, and particularly that which
has most embarrassed the recovery of fugitive slaves, has been
in opposition to an unbroken current of decisions in the Courts
of the states, and those of the United States. Not a point has
been decided in the cause now before this Court, which has not
been ruled in the Courts of Massachusetts, New York, and Penn-
sylvania, and in other State Courts. Judges have differed as
to some of them, but the Courts of the states have announced
all of them, with the consideration and solemnity of judicial
conclusion. In cases too, in which the decisions were appropriate,
because the points were raised by the record.
I consider the point I have been maintaining, more important
than any other in the opinion of the Court. It removes those
causes which have contributed more than any other to disturb
that harmony which is essential to the continuance of the Union.
The framers of the Constitution knew it to be so, and inserted
the provision in.it. Hereafter they cannot occur, if the judg-
ment of this Court in this cause shall meet with the same patri-
otic acquiescence which the tribunals of the states and the people
of the states have heretofore accorded to its decisions. The
recovery of fugitive slaves will hereafter be exclusively regu-
lated by the Constitution of the United States, and the acts of
Congress.
116
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
Apart from the position that the states may legislate in all
cases, where they are not expressly prohibited, or by necessary
implication ; the claim for the states to legislate is mainly advo-
cated upon the ground that they are bound to protect free blacks
and persons of colour residing in them from being carried into
slavery by any summary process. The answer to this is, that
legislation may be confined to that end, and be made effectual,
without making such a remedy applicable to fugitive slaves.
There is no propriety in making a remedy to protect those who
are free the probable means of freeing those who are not so.
It is also said, the states may aid by remedies the acts of Con-
gress, when they are not in conflict with them. I reply, Congress
has full power to enact all that such aid could give ; and if ex-
perience shows any deficiency in its enactments, Congress will
no doubt supply it. If there are not now agencies enough to
make the assertion of the right to fugitives convenient to their
owners, Congress can multiply them. But if it should not be
done, better is it that the inconvenience should be borne, than
that the states should be brought into collision upon this subject
as they have been ; and that they should attempt to supply defi-
ciencies, upon their separate views of what the remedies should
be to recover fugitive slaves within their jurisdictions.
I have heard it suggested, also, as a reason why the states
should legislate upon this subject, that Congress may repeal the
remedy it has given, and leave the provision unaided by legisla-
tion ; and that then the states might carry it into execution. Be
it so ; but the latter is not needed, for though legislation by Con-
gress supports the rights intended to be secured, there is energy
enough in the Constitution 'without legislation upon this subject,
to protect and enforce what it gives.
Mr. Justice Daniel.
Concurring entirely as I do with the majority of the Court, in
the conclusions they have reached relative to the effect and vali-
dity of the statute of Pennsylvania now under review, it is with
unfeigned regret that I am constrained to dissent from some of
the principles and reasonings which that majority in passing to
our common conclusions, have believed themselves called on
to affirm.
\
JANUARY TERM, 1842. 117
[Prigg v. The Commonwealth of Pennsylvania.]
In judicial proceedings generally, that has been deemed a safe
and prudent rule of action, which involves no rights, nor questions
not necessary to be considered ; but leaves these for adjudication
where, and when, only, they shall be presented directly and un-
avoidably, and when surrounded with every circumstance which
can best illustrate their character. If, in ordinary questions of
private interest, this rule is recommended by considerations of'
prudence, and accuracy, and justice ; it is surely much more to be
observed, when the subject to which it is applicable is the great
fundamental law of the confederacy : every clause and article
of which affects the polity and the acts of states.
Guided by the rule just mentioned, it seems to me that the regular
action of the Court in this case is limited to an examination of the
Pennsylvania statute, to a comparison of its provisions with the
third clause of the fourth article of the Constitution, and with the
act of Congress of 1793, with which the law of Pennsylvania is
alleged to be in conflict ; and that to accomplish these purposes, a
general definition or contrast of the powers of the state and federal
governments, was neither requisite nor proper. The majority of
my brethren, in the conscientious discharge of their duty, have
thought themselves bound to pursue a different course ; and it is
in their definition and distribution of state and federal powers,
and in the modes and times they have assigned for the exercising
those powers, that I find myself compelled to differ with them.
That portion of the Constitution which provides for the recovery
of fugitive slaves, is the third clause of the second section of the
fourth article ; and is in these words : " No person held to service
or labour in one state under the laws thereof, escaping into an-
other, shall in consequence of any law or regulation therein, be
discharged from such service or labour; but shall be delivered up
on claim of the party to whom such service or labour may be
due." The paramount authority of this clause in the Constitu-
tion to guaranty to the owner the right of property in his slave,
and the absolute nullity of any state power directly or indirectly,
openly or covertly, aimed to impair that right, or to obstruct its
enjoyment; I admit, nay, insist upon to the fullest extent. I con-
tend, moreover,. that the act of 1793, made in aid of this clause
of the Constitution and for its enforcement, so far as it conforms
to the Constitution is the supreme law to the states ; and cannot
118
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
be contravened by them without a violation of the Constitution.
But the majority of my brethren proceeding beyond these posi-
tions, assume the ground that the clause of the Constitution above
quoted, as an affirmative power granted by the Constitution, is
essentially an exclusive power in the federal government ; and
consequently that any and every exercise of authority by the
states at any time, though undeniably in aid of the guarantee
thereby given, is absolutely null and void.
Whilst I am free to admit the powers which are exclusive in the
federal government, some of them became so denominated by the
express terms of the Constitution ; some because they are prohi-
bited to the states; and others because their existence, and much
more their practical exertion by the two governments, would be
repugnant, and would neutralize if they did not conflict with and
destroy each other : I cannot regard the third clause of the fourth
article as falling either within the definition or meaning of an ex-
clusive power. Such a power, I consider as originally and abso-
lutely, and at all times incompatible with partition or association.
It excludes every thing but itself.
There is a class of powers originally vested in the states, which
by the theory of the federal government have been transferred to
the latter ; powers which the Constitution of itself does not exe-
cute, and which Congress may or may not enforce either in whole
or in part, according to its views of policy or necessity; or as it may
find them for the time beneficially executed or otherwise under
the state authorities. These are not properly concurrent, but may
be denominated dormant powers in the federal government ; they
may at any time be awakened into efficient action by Congress,
and from that time so far as they are called into activity, will of
course displace the powers of the states. But should they again
be withdrawn or rendered dormant, or should their primitive exer-
cise by the states never be interfered with by Congress; could it be
properly said that because they potentially existed in Congress
they were therefore denied to the states ? The prosperity, the
necessities of the country, and the soundest rules of constitutional
construction, appear to me to present a decided negative to this
inquiry. Nay, I am prepared to affirm, that even in instances
wherein Congress may have legislated, legislation by a state which
is strictly ancillary, would not be unconstitutional or improper.
JANUARY TERM, 1842.
119
[Prigg v. The Commonwealth of Pennsylvania.]
The interpretation for which I contend cannot be deemed a no-
velty in this Court ; but rests upon more than one of its decisions
upon the constitutional action of state authorities. In the case of
Sturgis v. Crowninshield, which brought in question the right of
the states to pass insolvent or bankrupt laws, Chief Justice Mar-
shall holds the following doctrine, 4 Wheat. 192, 193 : " The coun-
sel for the plaintiff contend that the grant of this power to Congress
without limitation, takes it entirely from the states. In support
of this proposition, they argue, that every power given to Con-
gress is necessarily supreme ; and if from its nature, or from the
words of the grant, it is apparently intended to be exclusive, it
is as much so as if they were expressly forbidden to exercise
it. These propositions have been enforced and illustrated by
many arguments drawn from different parts of the Constitution.
That the power is both unlimited and supreme, is not questioned.
That it is exclusive, is denied by the counsel for the defendant.
In considering this question, it must be recollected that previous
to the formation of the new Constitution, we were divided into
independent states, united for some purposes, but in most respects
sovereign. These states could exercise almost every legislative
power; and amongst others, that of passing bankrupt laws.
When the American people created a national legislature with
certain enumerated powers, it was neither necessary nor proper
to define the powers retained by the states. These powers re-
main as they were before the adoption of the Constitution, except
so far as they may be abridged by that instrument. In some in-
stances, as in making treaties, we find an express prohibition ;
and this shows the sense of the convention to have been that the
mere grant of a power to Congress did not imply a prohibition
on the states to the exercise of the same power." Again, p. 198,
"It does not appear to be a violent construction of the Constitu-
tion, and is certainly a convenient one, to consider the powers of
the states as existing over such cases as the laws of the Union do
not reach. Be this as it may, the power 6f Congress may be ex-
ercised or declined, as the wisdom of that body shall decide. It
is not the mere existence of the power, but its exercise, which is
incompatible with the exercise of the same power by the states.
It has been said that Congress has exercised this power ; and by
doing so, has extinguished the power of the states, which cannot
120
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
be revived by repealing the law of Congress. We do not think
so. If the right of the states is not taken away by the mere grant
of that power to Congress, it cannot be extinguished ; it can only
be suspended by enacting a general bankrupt law. The repeal
of that, cannot, it. is true, confer the power on the states ; but it re-
moves a disability to its exercise, which was created by the act
of Congress."
In the case of Houston v. Moore, 6 Wheat. 48, the following
doctrine, was held by Mr. Justice Story, and in accordance with
the opinion of the Court, in that case. "The Constitution con-
taining a grant of powers, in many instances similar to those
already existing in the state governments, and some of these
being of vital importance also to state authority, and state legis-
lation, it is not to be admitted that a mere grant of powers, in
affirmative terms, to Congress, does, per se, transfer an exclusive
sovereignty in such subjects to the latter; on the contrary, a rea-
sonable interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of
similar powers existing in the states ; except where the Constitu-
tion has, in express terms, given an exclusive power to Congress,
or the exercise of a like power is prohibited to the states. The
example of the first class is to be found in the exclusive legisla-
tion delegated to Congress over places purchased by the consent
of the legislature of the state in which the same shall be, for forts,
arsenals, -dock-yards, &c. : — of the second class, the prohibition
of a state to coin money or emit bills of credit : — of the third class,
as this Court have already held, is the power to establish an uni-
form rule of naturalization ; and the delegation of admiralty and
maritime jurisdiction. In all other cases not falling within the
classes already mentioned, it seems unquestionable that the states
retain concurrent authority with Congress, not only under the
eleventh amendment of the Constitution, but upon the soundest
principles of general reasoning. There is this reserve, however,
that in cases of concurrent authority, where the laws of the states
and of the Union are in direct and manifest collision on the same
subject, those of the Union being the supreme law of the land,
are of paramount authority; and the state laws, so far, and so far
only, as such incompatibility exists, must necessarily yield. Such
are the general principles by which my judgment is guided, in
JANUARY TERM, 1842.
121
[Prigg v. The Commonwealth of Pennsylvania.]
every investigation of constitutional points. They commend
themselves by their intrinsic equity ; and have been amply justi-
fied by the great men under whose guidance the Constitution was
framed, as well as by the practice of the government of the
Union. To desert them, would be to deliver ourselves over to
endless doubts and difficulties ; and probably to hazard the exist-
ence of the Constitution itself."
In the case of the City of New York v. Miln, 11 Peters, 102,
Mr. Justice Barbour, in delivering the opinion of the Court, lays
down the following position, (p. 137,) as directly deducible from
the decisions in Gibbons and Ogden, 7 Wheat. 204, and Brown and
the State of Maryland, 12 Wheat. 419: "Whilst a state is acting
within the legitimate scope of its power, as to the end to be at-
tained, it may use whatever means being appropriate to that end,
it may think fit ; although they be the same, or so nearly the
same as scarcely to be distinguished from those adopted by Con-
gress acting under a different power ; subject only to this limita-
tion, that in the event of collision, the law of the state must yield
to the law of Congress. The Court must be understood, of
course, as meaning that the law of Congress is passed upon a
subject within the sphere of its power." In the same case, the
following language is held by Mr. Justice Thompson, p. 145:
" In the leading cases upon this question, where the state law has
been held to be constitutional, there has been an actual conflict
between the legislation of Congress and that of the states, upon
the right drawn in question. And in all such cases, the law of
Congress is supreme. But in the case now before the Court,
no such conflict arises ; Congress has not legislated on this sub-
ject in any manner to affect the question." And again, p. 146,
it is said by the same judge ; " It is not necessary in this case
to fix any limits upon the legislation of Congress and of the states
on this subject ; or to say how far Congress may, under the
power to regulate commerce, control state legislation in this
respect. It is enough to say, that whatever the power of Con-
gress may be, it has not been exercised so as in any manner to
conflict with the state law ; and if the mere grant of the power
to Congress does not necessarily imply a prohibition of the states
to exercise the power until Congress assumes the power to exer-
cise it, no objection on that ground can arise to this law."
16 L
122
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
Here then are recognitions, repeated and explicit, of the pro-
priety, utility, and regularity of state action, in reference to
powers confessedly vested in the general government, so long as
the latter remains passive, or shall embrace within its own action
only a portion of its powers, and that portion not comprised in
the proceedings of a state government ; and so long as the states
shall neither conflict with the measures of the federal govern-
ment, nor contravene its policy. From these recognitions, it must
follow by necessary consequence, that powers vested in the
federal government which are compatible with the modes of exe-
cution just adverted to, cannot be essentially and originally, nor
practically, exclusive powers ; for whatever is exclusive, utterly
forbids, as has been previously observed, all partition or associa-
tion. I hold then that the states can establish proceedings which
are in their nature calculated to secure the rights of the slave-
holder guarantied to him by the Constitution ; as I shall attempt
to show, that those rights can never be so perfectly secured, as
when the states shall, in good faith, exert their authority to assist
in effectuating the guarantee given by the Constitution. Fugi-
tives from service, in attempting to flee either to the non-slave-
holding states, or into the Canadas, must, in many instances, pass
the intermediate states, before they can attain to the point they
aim at.
If there is a power in the states to authorize and order their
arrest and detention for delivery to their owners, not only will
the probabilities of recovery be increased by the performance of
duties enjoined by law upon the citizens of those states, as well
private persons as those who are officers of the law ; but the
incitements of interest, under the hope of reward, will in a certain
class of persons powerfully co-operate to the same ends. But
let it be declared that the rights of arrest and detention, with a
view of restoration to the owner, belong solely to the federal
government, exclusive of the individual right of the owner to
seize his property, and what are to be the consequences ? In the
first place, whenever the master, attempting to enforce his right
of seizure under the Constitution, shall meet with resistance, the
inconsiderable number of federal officers in a state, and their fre-
quent remoteness from the theatre of action, must, in numerous
instances, at once defeat his right of property, and deprive him
JANUARY TERM, 1842.
123
[Prigg v. The Commonwealth of Pennsylvania.]
also of personal protection and security. By the removal of every
incentive of interest in state officers, or individuals, and by the
inculcation of a belief that any co-operation with the master be-
comes a violation of law, the most active and efficient auxiliary
which he could possibly call to his aid is entirely neutralized.
Again, suppose that a fugitive from service should have fled to a
state where slavery does not exist, and in which the prevalent
feeling is hostile to that institution ; there might, nevertheless, in
such a community, be a disposition to yield something to an ac-
knowledged constitutional right — something to national comity
too, in the preservation of that right ; but let it once be proclaimed
from this tribunal, that any concession by the states towards the
maintenance of such a right, is a positive offence, the violation of
a solemn duty, and I ask what pretext more plausible could be
offered to those who are disposed to protect the fugitive, or to
defeat the rights of the master ? The Constitution and the act of
Congress would thus be converted into instruments for the de-
struction of that which they were designed especially to protect.
But it is said that if the states can legislate at all upon the subject
of fugitives from service, they may, under the guise of regulations
for securing the master's right, enact laws which, in reality, impair
or destroy them. This, like every other argument drawn from
the possible abuse of power, is deemed neither fair nor logical.
It is equally applicable to the exercise of power by the federal as
by the state governments ; and might be used in opposition to all
power and all government, as it is undeniable, that there is no
power and no government which is not susceptible of great
abuses. But those who argue from such possible or probable
abuses against all regulations by the states touching this matter,
should dismiss their apprehensions, under the recollection that
should those abuses be attempted, the corrective may be found,
as it is now about to be applied to some extent, in the controlling
constitutional authority of this Court.
It has been said that the states in the exercise of their police
powers may arrest and imprison vagrants or fugitives who may
endanger the peace and good order of society ; and by that means
contribute to the recovery by the master of his fugitive slave. It
should be recollected, however, that the police power of a state
has no natural affinity with her exterior relations, nor with those
*
124
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
which she sustains to her sister states ; but is confined to matters
strictly belonging to her internal order and quiet. The arrest or
confinement, or restoration of a fugitive, merely because he is
such, falls not regularly within the objects of police regulations ;
for such a person may be obnoxious to no charge of violence or
disorder ; he may be merely passing through the state peaceably
and quietly ; or he may be under the care and countenance of
some person affecting ownership over him, with the very view
of facilitating his escape. Under such circumstances he would
not be a proper subject for the exertion of the police power ; and
if not to be challenged under a different power in the state, his
escape would be inevitable, however strong might be the evi-
dences of his being a fugitive. But let it be supposed that either
on account of some offence actually committed, or threatened ; or
from some internal regulation forbidding the presence of such
persons within a state, they may be deemed subjects for the
exertion of the police power proper, to what end would the ex-
ercise of that power naturally lead ? Fugitives might be arrested
for punishment, or they might be expelled or deported from the
state. Nothing beyond these could be legally accomplished ; and
thus the invocation of this police power, so far from securing the
rights of the master, would be made an engine to insure the de-
privation of his property. Such are a portion of the consequences
which, in my opinion, must flow from the doctrines affirmed by
the majority of the Court : doctrines in my view not warranted
by the Constitution, nor by the interpretation heretofore given of
that instrument ; and the assertion whereof seemed not to have
been necessarily involved in the adjudication of this cause. With
the convictions predominatory in my mind as to the nature and
tendencies of these doctrines; whilst I cherish the profoundest
respect for the wisdom and purity of those who maintain them ;
it would be a dereliction of duty in me to yield to them a direct
or a tacit acquiescence ; I therefore declare my dissent from them.
Mr. Justice M'Lean.
As this case involves questions deeply interesting, if not vital,
to the permanency of the union of these states ; and as J differ on
one point from the opinion of the Court, I deem it proper to state
my own views on the subject.
JANUARY TERM, 1842.
[Prigg v. The Commonwealth of Pennsylvania.]
The plaintiff, Edward Prigg, was indicted under the first sec-
tion of an act of Pennsylvania, entitled "An act to give effect to
the provisions of the Constitution of the United States, relative to
fugitives from labour, for the protection of free people of colour,
and to prevent kidnapping."
It provides, " If any person or persons shall, from and after the
passing of this act, by force and violence, take and carry away,
or cause to be taken or carried away, and shall by fraud or false
pretence, seduce, or cause to be seduced, or shall attempt to take,
carry away, or seduce any negro or mulatto from any part or
parts of this commonwealth, to any other place or places whatso-
ever, out of this commonwealth, with a design and intention of
selling and disposing of, or of causing to be sold, or of keeping
and detaining, or of causing to be kept and detained, such negro
or mulatto as a slave or servant for life, or for any term whatso-
ever ; every such person or persons, his or their aiders or abettors
shall, on conviction thereof, be deemed guilty of felony, and shall
be fined in a sum not less than five hundred nor more than one
thousand dollars, and shall be sentenced to imprisonment and
hard labour not less than seven nor more than twenty-one years."
The plaintiff being a citizen of Maryland, with others, took
Margaret Morgan, a coloured woman, and a slave, by force and
violence, without the certificate required by the act of Congress,
from the state of Pennsylvania, and brought her to the state of
Maryland. By an amicable arrangement between the two states,
judgment was entered against the defendant, in the Court where
the indictment was found ; and on the cause being removed to
the Supreme Court of the state, that judgment, pro forma, was
affirmed. And the case is now here for our examination and
decision.
The last clause of the second section of the fourth article of the
Constitution of the United States, declares that, " No person held
to service or labour in one state, under the laws thereof, escaping
into another, shall, in consequence of any law or regulation there-
in, be discharged from such service or labour ; but shall be deli-
vered up on claim of the party to whom such service or labour
may be due."
This clause of the Constitution is now, for the first time, brought
before this Court for consideration.
l 2
126
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
That the Constitution was adopted in a spirit of compromise,
is matter of history. And all experience shows that to attain
the great objects of this fundamental law, it must be construed
and enforced in a spirit of enlightened forbearance and justice.
Without adverting to other conflicting views and interests of the
states represented in the general convention, the subject of
slavery was then, as it is now, a most delicate and absorbing con-
sideration. In some of the states, it was considered an evil, and
a strong opposition to it, in all its forms, was felt and expressed.
In others it was viewed as a cherished right, incorporated into the
social compact, and sacredly guarded by law.
Opinions so conflicting, and which so deeply pervaded the ele-
ments of society, could be brought to a reconciled action only by
an exercise of exalted patriotism. Fortunately for the country,
this patriotism was not wanting in the convention and in the
states. The danger of discord and ruin was seen, and felt, and
acknowledged ; and this led to the formation of the confederacy.
The Constitution, as it is, cannot be said to have imbodied in all
its parts, the peculiar views of any great section of the Union ;
but it was adopted by a wise and far-reaching conviction, that it
was the best which, under the circumstances, could be devised ;
and that its imperfections would be lost sight of, if not forgotten,
in the national prosperity and glory which it would secure.
A law is better understood by a knowledge of the evils which
led to its adoption. And this applies most strongly to a funda-
mental law.
At an early period of our history, slavery existed in all the
colonies ; and fugitives from labour were claimed and delivered
up under a spirit of comity or conventional law among the colo-
nies. The articles of confederation contained no provision on the
subject, and there can be no doubt that the provision introduced
into the Constitution was the result of experience and manifest
necessity. A matter so delicate, important, and exciting, was
very properly introduced into the organic law.
Does the provision, in regard to the reclamation of fugitive
slaves, vest the power exclusively in the federal government?
This must be determined from the language of the Constitu-
tion, and the nature of the power.
The language of the provision is general. It covers the whole
JANUARY TERM, 1842.
127
[Prigg v. The Commonwealth of Pennsylvania.]
ground, not in detail, but in principle. The states are inhibited
from passing " any law or regulation which shall discharge a fu-
gitive slave from the service of his master;" and a positive duty
is enjoined on them to deliver him up, "on claim of the party to
whom his service may be due."
The nature of the power shows that it must be exclusive.
It was designed to protect the rights of the master, and against
whom? Not against the state, nor the people of the state in
which he resides ; but against the people and the legislative action
of other states where the fugitive from labour might be found.
Under the confederation, the master had no legal means of enforc-
ing his rights in a state opposed to slavery. A disregard of rights
thus asserted was deeply felt in the south. It produced great ex-
citement, and would have led to results destructive of the Union.
To avoid this, the constitutional guarantee was essential.
The necessity for this provision was found in the views and
feelings of the people of the states opposed to slavery ; and who,
under such an influence, could not be expected favourably to re-
gard the rights of the master. Now, by whom is this paramount
law to be executed ?
It is contended that the power to execute it rests with the
states. The law was designed to protect the rights of the slave-
holder against the states opposed to those rights ; and yet, by this
argument, the effective power is in the hands of those on whom
it is to operate.
This would produce a strange anomaly in the history of legis-
lation. It would show an inexperience and folly in the venerable
framers of the Constitution, from which, of all public bodies that
ever assembled, they were, perhaps, most exempt.
The clause of the Constitution under consideration declares
that no fugitive from labour shall be discharged from such labour,
by any law or regulation of the state into which he may have
fled. Is the state to judge of this ? Is it left for the state to de-
termine what effect shall be given to this and other parts of the
provision ?
This power is not susceptible of division. It is a part of
the fundamental law, and pervades the Union. The rule of ac-
tion which it prescribes was intended to be the same in all the
states. This is essential to the attainment of the objects of the
128
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
law. If the effect of it depended, in any degree, upon the con-
struction of a state by legislation or otherwise, its spirit, if not its
letter, would be disregarded. This would not proceed from any
settled determination in any state to violate the fundamental rule,
but from habits and modes of reasoning on the subject. Such is
the diversity of human judgment, that opposite conclusions,
equally honest, are often drawn from the same premises. It is,
therefore, essential to the uniform efficacy of this constitutional
provision that it should be considered, exclusively, a federal power.
It is in its nature as much so as the power to regulate commerce,
or that of foreign intercourse.
To give full effect to this provision, was legislation necessary ?
Congress, by the passage of the act of 179 3, legislated on the sub-
ject, and this shows how this provision was construed shortly
after its adoption: and the reasons which were deliberately
considered, and which led to the passage of the act, show clearly
that it was necessary. These reasons will be more particularly
referred to under another head of the argument. But looking
only at the Constitution, the propriety, if not the necessity of
legislation is seen.
The Constitution provides that the fugitive from labour shall
be delivered up, on claim being made by the person entitled to
such labour; but it is silent as to how and on whom this claim
shall be made. The act of Congress provides for this defect and
uncertainty, by establishing the mode of procedure.
It is contended, that the power to legislate on this subject is
concurrently in the states and federal government. That the acts
of the latter are paramount, but that the acts of the former must
be regarded as of authority, until abrogated by the federal power.
How a power exercised by one sovereignty can be called concur-
rent, which may be abrogated by another, I cannot comprehend.
A concurrent power, from its nature, I had supposed must be
equal. If the federal government by legislating on the subject
annuls all state legislation on the same subject, it must follow that
the power is in the federal government and not in the state.
Taxation is a power common to a state and the general govern-
ment, and it is exercised by each independently of the other.
And this must be the character of all concurrent powers.
It is said that a power may be vested in the federal govern-
JANUARY TEUJYI, 1842.
129
[Prigg v. The Commonwealth of Pennsylvania.]
ment which remains dormant, and that in such case a state may-
legislate on the subject. In the case supposed, whence does the
legislature derive its power? Is it derived from the constitution
of the state, or the Constitution of the United States ?
If the power is given by the state constitution, it must follow
that it may be exercised independently of the federal power ; for
it is presumed no one will sanction the doctrine that Congress, by
legislation, may abridge the constitutional power of a state.
How can the power of the state be derived from the federal
Constitution ? Is it assumed on the ground that Congress having
the power have failed to exercise it? Where is such an assump-
tion to end ? May it not be applied with equal force and pro-
priety to the whole ground of federal legislation ; excepting only
the powers inhibited to the states ? Congress have not legislated
upon a certain subject, but this does not show that they may not
have duly considered it. Or, they may have acted without ex-
hausting the power. Now, in my judgment, it is illogical and
unconstitutional to hold that in either of these cases a state may
legislate.
Is this a vagrant power of the state, like a floating land war-
rant to be located on the first vacant spot that shall be found?
May a state occupy a fragment of federal power which has not
been exercised, and like a tenant at will, continue to occupy it
until it shall have notice to quit?
No such power is derived by implication from the federal
Constitution. It defines the powers of the general government,
and imposes certain restrictions and duties on the states. But
beyond this it in no degree affects the powers of the states. The
powers which belong to a state are exercised independently. In
its sphere of sovereignty it stands on an equality with the federal
government, and is not subject to its control. It would be as
dangerous as humiliating to the rights of a state, to hold that its
legislative powers were exercised to any extent and under any
circumstances, subject to the paramount action of Congress.
Such a doctrine would lead to serious and dangerous conflicts of
power.
The act of 1793 seems to cover the whole constitutional ground.
The third section provides, "That when a person held to labour
in any state or territory of the United States, under the laws
17
130
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
thereof, shall escape into any other of the said states or territories,
the person to whom such labour or service may be due, his agent
or attorney, is empowered to seize or arrest such fugitive from
labour, and to take him or her before any judge of the Circuit or
District Courts of the United States residing or being within the
state, or before any magistrate of a county, city, or town corpo-
rate, wherein such seizure or arrest shall be made, and upon
proof, to the satisfaction of such judge or magistrate, either by
oral testimony or affidavit, &c, that the person so seized or ar-
rested, doth, under the laws of the state or territory from which
he or she fled, owe service or labour to the person claiming him
or her, it shall be the duty of such judge or magistrate to give a
certificate thereof to such claimant, his agent, or attorney, which
shall be sufficient warrant for removing said fugitive to the state
from which he or she fled."
The fourth section imposes a penalty on any person who shall
obstruct or hinder such claimant, his agent, or attorney, &c. or
shall rescue such fugitive, when so arrested, &c.
It seems to be taken as a conceded point in the argument, that
Congress had no power to impose duties on state officers, as pro-
vided in the above act. As a general principle this is true ; but
does not the case under consideration form an exception ? Con-
gress can no more regulate the jurisdiction of the state tribunals,
than a state can define the judicial power of the Union. The
officers of each government are responsible only to the respective
authorities under which they are commissioned. But do not
the clauses in the Constitution in regard to fugitives from labour,
and from justice, give Congress a power over state officers, on
these subjects ? The power in both the cases is admitted or
proved to be exclusively in the federal government.
The clause in the Constitution preceding the one in relation to
fugitives from labour, declares that, "A person charged in any
state with treason, felony, or other crime, who shall flee from
justice, and be found in another state, shall, on demand of the
executive authority of the state from which he fled, be delivered
up to be removed to the state having jurisdiction of the crime."
In the first section of the act of 1793, Congress have provided
that on demand being made as above, " it shall be the duty of
JANUARY TERM, 1842.
131
[Prigg v. The Commonwealth of Pennsylvania.]
the executive authority to cause the person demanded to be ar-
rested, &c.
The constitutionality of this law, it is believed, has never been
questioned. It has been obeyed by the governors of states, who
have uniformly acknowledged its obligation. To some demands
surrenders have not been made ; but the refusals have, in no
instance, been on the ground that the Constitution and act of
Congress were of no binding force. Other reasons have been
assigned.
Now, if Congress may by legislation require this duty to be
performed by the highest state officer, may they not on the same
principle require appropriate duties in regard to the surrender
of fugitives from labour, by other state officers. Over these sub-
jects the constitutional power is the same.
In both cases the act of 1793 defines on what evidence the
delivery shall be made. This was necessary, as the Constitution
is silent on the subject. The act provides that on claim being
made of a fugitive from labour, " it shall be the duty of such
judge or magistrate to give a certificate that the person claimed
owes services to the claimant."
The Constitution requires " that such person shall be delivered
up, on claim of the party to whom the service is due." Here is
a positive duty imposed ; and Congress have said in what mode
this duty shall be performed. Had they not power to do so ? If
the Constitution was designed, in this respect, to require, not a
negative but a positive duty on the state and the people of the
state where the fugitive from labour may be found ; of which, it
would seem, there can be no doubt ; it must be equally clear that
Congress may prescribe in what manner the claim and surrender
shall be made. I am therefore brought to the conclusion that,
although, as a general principle, Congress cannot impose duties
on state officers, yet in the cases of fugitives from labour and
from justice, they have the power to do so.
In the case of Martin's Lessee v. Hunter, 1 Wheat. Rep. 304,
this Court say, " The language of the Constitution is imperative on
the states as to the performance of many duties. It is imperative
on the state legislatures to make laws prescribing the time, place,
and manner of holding elections for senators and representatives,
and for electors of President and Vice. President. And in these as
132
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
weil as in other cases, Congress have a right to revise, amend, or su-
persede the laws which may be passed by the state legislatures."
Now, I do not insist on the exercise of the federal power to
the extent as here laid down. I go no farther than to say, that
where the Constitution imposes a positive duty on a state or its
officers to surrender fugitives, that Congress may prescribe the
mode of proof, and the duty of the state officers.
This power may be resisted by a state, and there is no means
of coercing it. In this view the power may be considered an im-
portant one. So the Supreme Court of a state may refuse to
certify its record on a writ of error to the Supreme Court of the
Union, under the twenty-fifth section of the judiciary act. But
resistance to a constitutional authority by any of the state func-
tionaries, should not be anticipated ; and if made, the federal go-
vernment may rely upon its own agency in giving effect to the
laws.
I come now to a most delicate and important inquiry in this
case, and that is, whether the claimant of a fugitive from labour
may seize and remove him by force out of the state in which he
may be found, in defiance of its laws. I refer not to laws which
are in conflict with the Constitution, or the act of 1793. Such
state laws, I have already said, are void. But I have reference
to those laws which regulate the police of the state, maintain the
peace of its citizens, and preserve its territory and jurisdiction
from acts of violence.
About the time of the adoption of the Constitution, a coloured
man was seized by several persons in the state of Pennsylvania,
and forcibly removed out of it, with the intent, as charged, to
enslave him. This act was then, as it is now, a criminal offence
by the law of Pennsylvania. Certain persons were indicted for
this offence, and in the year 1791, the Governor of Pennsylvania
demanded of the Governor of Virginia, the persons indicted, as
fugitives from justice.
The Governor of Virginia submitted the case to the attorney-
general of that state, who decided, that the offence charged in the
indictment was not such a crime as under the Constitution re-
quired a surrender. He also held, " that control over the persons
charged ought not to be acquired by any force not specified and
delegated by positive law." The Governor of Virginia refused
JANUARY TERM, 1842.
133
[Prigg v. The Commonwealth of Pennsylvania.]
to arrest the defendants, and deliver them to the authorities of
Pennsylvania. The correspondence between the governors and
the opinion of the attorney-general of Virginia, with other papers
relating to the case, were transmitted to the President of the
United States, who laid them before Congress. And there can
be no doubt that this correspondence, and the forcible removal of
the coloured person, which gave rise to it, led to the passage of the "
act of 1793.
It is not unworthy of remark, that a controversy on this subject
should first have arisen after the adoption of the Constitution, in
Pennsylvania ; and that after a lapse of more than half a century,
a controversy involving a similar act of violence should be brought
before this Court, for the first time, from the same state.
Both the Constitution and the act of 1793, require the fugitive
from labour to be delivered up on claim being made, by the party
or his agent, to whom the service is due. Not that a suit should
be regularly instituted. The proceeding authorized by the law
is summary and informal. The fugitive is seized by the claimant,
and taken before a judge or magistrate within the state, and on
proof, parol or written, that he owes labour to the claimant, it is
made the duty of the judge or magistrate to give the certificate,
which authorizes the removal of the fugitive to the state from
whence he absconded.
The counsel inquire of whom the claim shall be made. And
they represent that the fugitive, being at large in the state, is in the
custody of no one, nor under the protection of the state ; so that
the claim cannot be made, and consequently that the claimant
may seize the fugitive and remove him out of the state.
A perusal of the act of Congress obviates this difficulty, and
the consequence which is represented as growing out of it.
The act is framed to meet the supposed case. The fugitive is
presumed to be at large, for the claimant is authorized to seize
him. After seizure, he is in custody ; before it, he was not. And
the claimant is required to take him before a judicial officer of the
state ; and it is before such officer his claim is to be made.
To suppose that the claim is not to be made, and indeed can-
not be unless the fugitive be in the custody or possession of some
public officer or individual, is to disregard the letter and spirit of
the act of 1793. There is no act in the statute book more pre-
M
134
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
cise in its language ; and, as it would seem, less liable to miscon-
struction. In my judgment, there is not the least foundation in.
the act for the right asserted in the argument, to take the fugitive
by force and remove him out of the state.
Such a proceeding can receive no sanction under the act, for it
is in express violation of it. The claimant having seized the
fugitive, is required by the act to take him before a federal judge
within the state, or a state magistrate within the county, city, or
town corporate, within which the seizure was made. Now, can
there be any pretence that after the seizure under the statute, the
claimant may disregard the other express provision of it, by
taking the fugitive without claim out of the state. But it is
said, the master may seize his slave wherever he finds him, if by
doing so he does not violate the public peace ; that the relation
of master and slave is not affected by the laws of the state, to
which the slave may have fled, and where he is found.
If the master has a right to seize and remove the slave with-
out claim, he can commit no breach of the peace by using all the
force necessary to accomplish his object.
It is admitted that the rights of the master, so far as regards the
services of the slave, are not impaired by this change ; but the
mode of asserting them, in my opinion, is essentially modified.
In the state where the service is due, the master needs no other
law than the law of force to control the action of the slave.
But can this law be applied by the master in a state which makes
the act unlawful ?
Can the master seize his slave and remove him out of the state
in disregard of its laws, as he might take his horse which is
running at large ? This ground is taken in the argument. Is
there no difference in principle in these cases ?
The slave, as a sensible and human being, is subject to the
local authority into whatsoever jurisdiction he may go. He is
answerable under the laws for his acts, and he may claim their
protection. The state may protect him against all the world ex-
cept the claim of his master. Should any one commit lawless
violence on the slave, the offender may unquestionably be pu-
nished ; and should the slave commit murder, he may be detained
and punished for it by the state, in disregard of the claim of the
JANUARY TERM, 1842.
135
[Prigg v. The Commonwealth of Pennsylvania.]
master. Being within the jurisdiction of a state, a slave bears a
very different relation to it from that of mere property.
In a state where slavery is allowed, every coloured person is
presumed to be a slave ; and on the same principle, in a non-
slaveholding state, every person is presumed to be free without
regard to colour. On this principle, the states, both slaveholding
and non-slaveholding, legislate. The latter may prohibit, as
Pennsylvania has done under a certain penalty, the forcible re-
moval of a coloured person out of the state. Is such law in
conflict with the act of 1793 ?
The act of 1793 authorizes a forcible seizure of the slave by
the master, not to take him out of the state, but to take him
before some judicial officer within it. The act of Pennsylvania
punishes a forcible removal of a coloured person out of the state.
Now, here is no conflict between the law of the state and the
law of Congress. The execution of neither law can, by any just
interpretation, in my opinion, interfere with the execution of the
other. The laws in this respect stand in harmony with each
other.
It is very clear that no power to seize and forcibly remove
the slave without claim is given by the act of Congress. Can it
be exercised under the Constitution ? Congress have legislated
on the constitutional power, and have directed the mode in which
it shall be executed. The act, it is admitted, covers the whole
ground ; and that it is constitutional there seems to be no reason
to doubt. Now, under such circumstances, can the provisions
of the act be disregarded, and an assumed power set up under
the Constitution ? This is believed to be wholly inadmissible by
any known rule of construction.
The terms of the Constitution are general, and like many other
powers in that instrument require legislation. In the language
of this Court in Martin v. Hunter, 1 Wheat. Rep. 304, "the powers
of the Constitution are expressed in general terms, leaving to the
legislature, from time to time, to adopt its own means to effectuate
legitimate objects, and to mould and model the exercise of its
powers, as its own wisdom and the public interests should re-
quire."
This, Congress have done by the act of 1793. It gives a sum-
mary and effectual mode of redress to the master, and is he not
136
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
bound to pursue it ? It is the legislative construction of the Con-
stitution ; and is it not a most authoritative construction ? I was
not prepared to hear the counsel contend that, notwithstanding
this exposition of the Constitution, and ample remedy provided
in the act, the master might disregard the act and set up his right
under the Constitution. And having taken this step, it was easy
to take another, and say, that this right may be asserted by a
forcible seizure and removal of the fugitive.
This would be a most singular constitutional provision. It
would extend the remedy by recaption into another sovereignty,
which is sanctioned neither by the common law nor the law of
nations. If the master may lawfully seize and remove the
fugitive out of the state where he may be found, without an
exhibition of his claim, he may lawfully resist any force, physi-
cal or legal, which the state, or the citizens of the state, may
interpose.
To hold that he must exhibit his claim in case of resistance, is
to abandon the ground assumed. He is engaged, it is said, in the
lawful prosecution of a constitutional right. All resistance then,
by whomsoever made, or in whatsoever form, must be illegal.
Under such circumstances the master needs no proof of his claim,
though he might stand in need of additional physical power.
Having appealed to this power, he has only to collect a sufficient
force to put down all resistance and attain his object. Having
done this, he not only stands acquitted and justified; but he has
recourse for any injury he may have received in overcoming the
resistance.
If this be a constitutional remedy, it may not always be a
peaceful one. But if it be a rightful remedy, that it may be car-
ried to this extent, no one can deny. And if it may be exercised
without claim of right, why may it not be resorted to after the
unfavourable decision of the judge or magistrate ? This would
limit the necessity of the exhibition of proof by the master to the
single case where the slave was in the actual custody of some
public officer. How can this be the true construction of the Con-
stitution ? That such a procedure is not sanctioned by the act of
1793 has been shown. That act was passed expressly to guard
against acts of force and violence.
I cannot perceive how any one can doubt that the remedy
JANUARY TERM, 1842.
137
[Prigg v. The Commonwealth of Pennsylvania.]
given in the Constitution, if indeed it give any remedy without
legislation, was designed to be a peaceful one ; a remedy sanc-
tioned by judicial authority ; a remedy guarded by the forms
of law. But the inquiry is reiterated, is not the master entitled
to his property? I answer that he is. His right is guarantied
by the Constitution, and the most summary means for its enforce-
ment is found in the act of Congress. And neither the state nor
its citizens can obstruct the prosecution of this right.
The slave is found in a state where every man, black or white,
is presumed to be free ; and this state, to preserve the peace of
its citizens, and its soil and jurisdiction from acts of violence, has
prohibited the forcible abduction of persons of colour. Does this
law conflict with the Constitution ? It clearly does not, in its
terms.
The conflict is supposed to arise out of the prohibition against
the forcible removal of persons of colour generally, which may
include fugitive slaves. Prima facie it does not include slaves, as
every man within the state is presumed to be free, and there is
no provision in the act which embraces slaves. Its language
clearly shows, that it was designed to protect free persons of
colour within the state. But it is admitted, there is no exception
as to the forcible removal of slaves. And here the important
and most delicate question arises between the power of the
state, and the assumed but not sanctioned power of the federal
government.
No conflict can arise between the act of Congress and this
state law. The conflict can only arise between the forcible
acts of the master and the law of the state. The master ex-
hibits no proof of right to the services of the slave, but seizes
him and is about to remove him by force. I speak only of the
force exerted on the slave. The law of the state presumes him
to be free, and prohibits his removal. Now, which shall give
way, the master or the state ? The law of the state does, in no
case, discharge, in the language of the Constitution, the slave from
the service of his master.
It is a most important police regulation. And if the master
violate it, is he not amenable ? The offence consists in the ab-
duction of a person of colour. And this is attempted to he justi-
fied upon the simple ground that the slave is property. That a
18 M 2
138
SUPREME COURT.
[Prigg v. The Commonwealth of Pennsylvania.]
slave is property must be admitted. The state law is not violated
by the seizure of the slave by the master, for this is authorized
by the act of Congress ; but by removing him out of the state by
force, and without proof of right, which the act does not authorize.
Now, is not this an act which a state may prohibit ? The pre-
sumption in a non-slaveholding state is against the right of the
master, and in favour of the freedom of the person he claims.
This presumption may be rebutted, but until it is rebutted by the
proof required in the act of 1793, and also, in my judgment, by
the Constitution, must not the law of the state be respected and
obeyed ?
The seizure which the master has a right to make under the
act of Congress is for the purpose of taking the slave before an
officer. His possession of the slave within the state, under this
seizure, is qualified and limited to the subject for which it was
made.
The certificate of right to the service of the slave is undoubt-
edly for the protection of the master ; but it authorizes the re-
moval of the slave out of the state where he was found, to
the state from whence he fled. And under the Constitution this
authority is valid in all the states.
The important point is, shall the presumption of right set up
by the master, unsustained by any proof, or the presumption
which arises from the laws and institutions of the state, prevail.
This is the true issue. The sovereignty of the state is on one
side, and the asserted interest of the master on the other. That
interest is protected by the paramount law, and a special, a sum-
mary, and an effectual mode of redress is given. But this mode
is not pursued, and the remedy is taken into his own hands by
the master.
The presumption of the state that the coloured person is free
may be erroneous in fact ; and if so, there can be no difficulty in
proving it. But may not the assertion of the master be erroneous
also ; and if so, how is his act of force to be remedied ? The co-
loured person is taken, and forcibly conveyed beyond the jurisdic-
tion of the state. This force, not being authorized by the act of
Congress nor by the Constitution, maybe prohibited by the state.
As the act covers the whole power in the Constitution, and carries
out, by special enactments, its provisions, we arc, in my judgment,
JANUARY TERM, 1842.
139
[Prigg v. The Commonwealth of Pennsylvania.]
bound by the act. We can no more, under such circumstances,
administer a remedy under the Constitution, in disregard of the
act, than we can exercise a commercial or other power in disre-
gard of an act of Congress on the same subject.
This view respects the rights of the master and the rights of
the state. It neither jeopards nor retards the reclamation of the
slave. It removes all state action prejudicial to the rights of the
master; and recognises in the state a power to guard and protect
its own jurisdiction, and the peace of its citizens.
It appears, in the case under consideration, that the state magis-
trate before whom the fugitive was brought refused to act. In
my judgment he was bound to perform the duty required of him
by a law paramount to any act, on the same subject, in his own
state. But this refusal does not justify the subsequent action of
the claimant. He should have taken the fugitive before a judge
of the United States, two of whom resided within the state.
It may be doubted whether the first section of the act of Penn-
sylvania under which the defendant was indicted, by a fair con-
struction applies to the case under consideration. The decision
of the Supreme Court of that state was pro forma, and, of course,
without examination. Indeed, I suppose, the case has been made
up merely to bring the question before this Court. My opinion,
therefore, does not rest so much upon the particular law of Penn-
sylvania, as upon the inherent and sovereign power of a state, to
protect its jurisdiction and the peace of its citizens, in any and
every mode which its discretion shall dictate, which shall not
conflict with a defined power of the federal government.
This cause came on to be heard on the transcript of the re-
cord from the Supreme Court of Pennsylvania, and was argued
by counsel ; on consideration whereof, It is the opinion of this
Court, that the act of the Commonwealth of Pennsylvania, upon
which the indictment in this case is founded, is repugnant to the
Constitution and laws of the United States, and, therefore, void ;
and that the judgment of the Supreme Court of Pennsylvania
upon the special verdict found in the case, ought to have been
that the said Edward Prigg was not guilty. It is, therefore, or-
dered and adjudged by this Court, that the judgment of the said
Supreme Court of Pennsylvania be, and the same is, hereby, re-
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